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                            Before the
                Federal Communications Commission
                     Washington, D.C.  20554
In the Matter of:                    )
                                 )
Communications Assistance for        )  CC Docket No. 97-213
Law Enforcement Act              )
          FURTHER NOTICE OF PROPOSED RULEMAKING
     Adopted:  October 22, 1998      ; Released:  November 5, 1998
Comment Date:  December 14, 1998
Reply Comment Date:  January 13, 1999
By the Commission:  Commissioner Furchtgott-Roth issuing a statement.
                    TABLE OF CONTENTS
                                                  Paragraph No.
I.   INTRODUCTION                                       1
II.  BACKGROUND                                         3
     A.   CALEA Assistance Capability Requirements                5
     B.   Development of Industry Interim Standard J-STD-025          11
     C.   Petitions for Rulemaking                          16
III. DISCUSSION                                        23
     A.   Authority and Approach                            23
       B.   Industry Interim Standard J-STD-025                    36
       C.   Particular Capabilities of J-STD-025 Opposed by CDT         48
            1.   Location information                         48
            2.   Packet-Mode                                  58
       D.   DoJ/FBI Punch List                                67
                 1.   General Comments                             67
            2.   Content of subject-initiated conference calls          73
            3.   Party hold, join, drop on conference calls             80
            4.   Subject-initiated dialing and signaling information         88
            5.   In-band and out-of-band signaling                 95
            6.   Timing information                              101
            7.   Surveillance status                                  106
            8.   Continuity check tone                           111
            9.   Feature status                                  116
            10.  Dialed digit extraction                         123
       E.   Disposition of J-STD-025                             129
       F.   Other Technologies and Systems                            134
       G.   Other Matters                                            142
IV.    PROCEDURAL MATTERS                              146
       A.   Scope of Proceeding                                  146
       B.   Ex Parte                                        147
       C.   Initial Regulatory Flexibility Analysis                   148
       D.   Notice and Comment Provisions                        165
V.     ORDERING CLAUSES                                     168
VI.    APPENDIX OF COMMENTING PARTIES
                      I.   INTRODUCTION
       1.   In this Further Notice of Proposed Rulemaking (Further NPRM), we address alleged
deficiencies in industry-developed technical requirements for wireline, cellular, and broadband
Personal Communications Services (PCS) carriers to comply with the assistance capability
requirements prescribed by the Communications Assistance for Law Enforcement Act of 1994
(CALEA, or the Act).  Industry developed these technical requirements in an attempt to satisfy the
"safe harbor" provision of the Act, which permits telecommunications carriers to be found in
compliance with CALEA if carriers comply with publicly available technical requirements adopted
by an industry association or standard-setting organization, or by the Commission.  The Act
authorizes the Commission to establish, by rule, technical requirements or standards that meet the
assistance capability requirements, if industry or standards-setting organizations have failed to set
such standards, or if any party believes that an industry standard is deficient.  To date, the
Commission has received four petitions for rulemaking asking us to establish such requirements or
standards pursuant to our statutory authority under the Act.  In addition, in response to a Public
Notice the Commission's Wireless Telecommunications Bureau and Office of Engineering and
Technology released on April 20, 1998, we have received numerous comments disputing whether
certain specific technical requirements are necessary to comply with CALEA.
       2.   In light of petitioners' claims that the interim standard adopted by industry is
deficient with regard to particular technical requirements it currently includes, this Further NPRM
analyzes those specific requirements and reaches tentative conclusions regarding which of them are
required by CALEA.  The Further NPRM also seeks comment on a range of issues associated with
the Commission's obligations under the Act.  In addition, we seek comment on what role, if any, we
can or should play in assisting telecommunications carriers other than wireline, cellular, and
broadband PCS carriers to set standards for, or to achieve compliance with, CALEA's requirements.
                      II.  BACKGROUND
       3.   Since 1970, telecommunications carriers have been required to cooperate with law
enforcement agencies in conducting electronic surveillance.  Recent advances in technology,
however, most notably the introduction of digital transmission and processing techniques and the
proliferation of wireless services, have hampered the law enforcement community's ability to
conduct lawfully authorized surveillance.  CALEA was enacted in 1994 to address such problems,
and to ensure that law enforcement surveillance efforts would not be unintentionally thwarted by the
development and deployment of new telecommunications technologies and services.  At the same
time, however, Congress recognized the need to protect privacy interests within the context of court-
authorized electronic surveillance.  In defining the terms and requirements of the Act, therefore,
Congress sought to balance three important policies:  "(1) to preserve a narrowly focused capability
for law enforcement agencies to carry out properly authorized intercepts; (2) to protect privacy in
the face of increasingly powerful and personally revealing technologies; and (3) to avoid impeding
the development of new communications services and technologies."  Based on these
considerations, Congress envisioned that the requirements of CALEA would serve as "both a floor
and a ceiling," defining the minimum capabilities that should be provided to law enforcement, while
also establishing limits as to what can be provided.
    4.    CALEA directs carriers to ensure that their equipment, facilities, and services are
capable of meeting certain requirements to assist law enforcement in carrying out lawfully
authorized electronic surveillance.  To accomplish this, the Act sets out general assistance capability
requirements that telecommunications carriers must meet, and defines the obligations of the industry,
the law enforcement community, and the Commission in developing the technical requirements or
standards necessary to meet these requirements.  To date, industry and the law enforcement
community, although they have reached agreement on many issues, disagree on whether certain
specific features and/or technical requirements must be provided by carriers to comply with the Act's
assistance capability requirements.  Consequently, as authorized by the Act, representatives of
industry, law enforcement, and the privacy community have petitioned the Commission to establish
such technical requirements or standards.  In this Further NPRM, therefore, we consider whether
certain specific technical requirements are necessary for wireline, cellular and broadband PCS
carriers to meet CALEA's assistance capability requirements.  Below we discuss the relevant
provisions of the Act.
A.  CALEA Assistance Capability Requirements
    5.    The basic requirements for meeting CALEA's mandates are contained in Section 103,
which establishes four general "assistance capability requirements" that carriers must meet to achieve
compliance.  Specifically, Section 103 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
        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.
    6.    CALEA does not specify how these four assistance capability requirements are to be
met.  Rather, it states only that telecommunications carriers, in consultation with manufacturers and
telecommunications support service providers, must ensure that the carriers' equipment, facilities,
and services comply with the requirements.  Manufacturers and telecommunications support
service providers are subject to a "cooperation" requirement, i.e., they are required to make available
to carriers the features and modifications necessary for carriers to comply with the requirements "on
a reasonably timely basis and at a reasonable charge."  Additionally, the Attorney General of the
United States must consult with appropriate industry associations and standards-setting
organizations; with representatives of users of telecommunications equipment, facilities, and
services; and with state utility commissions "to ensure the efficient and industry-wide
implementation of the assistance capability requirements."
    7.    Section 107(a)(2) of CALEA contains a "safe harbor" provision, stating that "[a]
telecommunications carrier shall be found to be in compliance with the assistance capability
requirements under Section 103, and a manufacturer of telecommunications transmission or
switching equipment or a provider of telecommunications support services shall be found to be in
compliance with section 106, if the carrier, manufacturer, or support service provider is in
compliance with publicly available technical requirements or standards adopted by an industry
association or standard-setting organization, or by the Commission under subsection (b), to meet the
requirements of Section 103."  Thus, the Act envisions that an industry association or a standards-
setting organization would set applicable standards.  Individual carriers, however, are free to choose
any technical solution that meets the assistance capability requirements of CALEA, whether based
on an industry standard or not.  Carriers, therefore, have some degree of flexibility in deciding how
they will comply with CALEA's Section 103 requirements.  CALEA specifically states, however,
that the absence of industry standards does not relieve a carrier of its obligation to comply with the
assistance capability requirements.
    8.    In addition to the safe harbor provision, section 107 also defines certain Commission
responsibilities under the Act.  Specifically, upon petition, section 107(b) authorizes the Commission
to establish, by rule, technical requirements or standards necessary for implementing Section 103.
Section 107(b) provides that a petition may be filed with the Commission (1) if industry associations
or standard-setting organizations fail to issue technical requirements or standards, or (2) if a
government agency or any other person believes that requirements or standards that were issued are
deficient.
    9.    Section 107(b) specifies five factors that the Commission must consider as part of its
efforts to establish technical requirements or standards to meet the assistance capability requirements
of Section 103.  Such technical requirements or standards must:
                           meet the assistance capability requirements of Section 103 by cost-
              effective methods;protect the privacy and security of communications
              not authorized to be intercepted;
                           minimize the cost of such compliance on residential ratepayers;
                           serve the policy of the United States to encourage the provision of new
              technologies and services to the public; and
                           provide 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.
    10.   Section 107(c) authorizes the Commission to extend the compliance date for
telecommunications carriers' equipment, facilities, and services.  On September 11, 1998, the
Commission exercised its authority under section 107(c) by extending the deadline for
compliance with Section 103 requirements from October 25, 1998 to June 30, 2000.  This
extension applies to 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.
B.  Development Of Industry Interim Standard J-STD-025
    11.   Since early 1995, Subcommittee TR45.2 of the Telecommunications Industry
Association (TIA) has been working to develop an industry standard that would satisfy the assistance
capability requirements of Section 103 for wireline, cellular, and broadband PCS carriers.  The
standards-setting effort has included participation by industry and law enforcement.  In 1996, the
Subcommittee received from the Federal Bureau of Investigation (FBI) a document known as the
Electronic Surveillance Interface (ESI).  The ESI was law enforcement's recommendation for the
logical and physical interfaces between a wireline, cellular, or broadband PCS carrier's network and
a law enforcement agency's electronic surveillance collection facility.  The ESI was developed at the
request of industry to describe law enforcement's vision and recommendations for the interface.  The
ESI defined the requirements for the delivery of both call content and call-identifying information
to a law enforcement agency (LEA).
    12.   By the spring of 1997, TIA developed a final draft of a proposed CALEA industry
standard.  The draft standard defined services and features to support lawfully authorized electronic
surveillance and the interfaces to deliver authorized intercepted communications and call-identifying
information to a LEA.  Specifically, the draft standard defined the intercept function in terms of five
broad categories:  access, delivery, service provider administration, collection, and law enforcement
administration.  This standard was submitted for balloting to all participants in the standards-setting
process under procedures of the American National Standards Institute (ANSI).  The law
enforcement community unanimously opposed adoption of this standard, and it was voted down.
The FBI, on behalf of this community, attached a lengthy critique of the draft standard to its ballot,
including specific recommendations for changes.
    13.   The FBI's objections to the draft standard centered around a list of technical
capabilities that it contended are necessary to meet CALEA's requirements, but that were not
included in the industry interim standard.  The FBI's list, which has come to be known as the "punch
list," originally contained 11 items, and now contains nine items.  Specifically, the FBI's punch list
identifies the following capabilities it believes must be provided under CALEA:
1) Content of subject-initiated conference calls -- Would enable law enforcement to access the
content of conference calls supported by the subject's service (including the call content of parties
on hold).
2) Party hold, join, drop --
    Messages would be sent to law enforcement that identify the
        active parties of a call.  Specifically, on a conference call, these messages would
indicate whether a party is on hold, has joined or has been dropped
        from the conference call.
3) Subject-initiated dialing and
     signaling information --
    Access to all dialing and signaling information available from
        the subject would inform law enforcement of a subject's use of features (such as the use
of flash-hook and
    other feature keys).
4) In-band and out-of-
    band signaling (notification message) -- A message would be sent to law enforcement
whenever a         subject's service sends a tone or other network message to the subject or
associate (e.g., notification that a line
    is ringing or busy).
5) Timing information --
    Information necessary to correlate call-identifying information with the call content of a
communications
    interception.
6) Surveillance status   -- Message
     that would verify that an
    interception is still functioning on the appropriate subject.
7) Continuity check tone (c-tone) --
    Electronic signal that would alert law enforcement if the
        facility used for delivery of call content interception has
        failed or lost continuity.
8) Feature status -- Would affirmatively notify law enforcement of any changes in features to which
a subject subscribes.
9) Dialed digit extraction --
    Information would include those digits dialed by a subject after the initial call setup is
completed.
    14.   After the close of balloting, Subcommittee TR45.2 held a number of meetings and
made changes to the draft industry standard, including a number of changes recommended by the
FBI.  However, based on the concerns discussed below, none of the FBI punch list items were added
to the industry standard.  The Subcommittee recommended that the revised standard be considered
as a joint TIA/Committee T1 Interim Standard and reballoted under TIA procedures rather than
ANSI's.  An interim standard, however, is valid for a period of only three years and is considered
by ANSI as a "trial use."  TIA adopted the recommendations, and the revised draft standard was
submitted for voting in the fall of 1997.  Because no law enforcement agencies are members of the
TIA or Committee T1, however, only industry entities were eligible to cast ballots.
    15.   The industry unanimously approved the draft standard as fulfilling the requirements
mandated by CALEA.  In December 1997, the TIA and Committee T1, sponsored by the Alliance
for Telecommunications Industry Solutions, announced the joint publication of interim standard J-
STD-025, Lawfully Authorized Electronic Surveillance (J-STD-025, interim standard, or industry
interim standard).  This standard defines services and features required to support lawfully
authorized electronic surveillance and specifies interfaces necessary to deliver intercepted
communications and call-identifying information to a LEA.  TIA stated that compliance with J-STD-
025 satisfies the "safe harbor" provisions of CALEA.
C.  Petitions for Rulemaking
    16.   In July 1997, before the industry interim standard was released, the Cellular
Telecommunications Industry Association (CTIA) filed a petition for rulemaking on behalf of its
members requesting that the Commission establish a standard to implement the requirements of
Section 103, pursuant to the Commission's authority under section 107(b).  CTIA contended that the
standards setting process was deadlocked, and that it was unlikely that a standard would be
developed in the near future.  CTIA attached to its petition the draft industry standard that ultimately
became J-STD-025, and argued that this draft standard met the functional requirements of CALEA
in their entirety.
    17.   In August 1997, comments on the CTIA petition were filed jointly by the Center for
Democracy and Technology (CDT) and the Electronic Frontier Foundation (EFF). CDT/EFF
generally supported CTIA's request to adopt the proposed industry standard; however, they
recommended the deletion of provisions relating to subject location and packet-mode information.
In March 1998, following adoption of the industry interim standard, DoJ/FBI jointly filed a motion
to dismiss CTIA's Petition for Rulemaking on the grounds that the December 1997 adoption of the
interim standard rendered CTIA's petition moot.  As discussed below, we agree, and dismiss
CTIA's July 1997 Petition for Rulemaking.
    18.   On March 26, 1998, CDT filed a petition for rulemaking, requesting that the
Commission intervene in the implementation of CALEA.  CDT reiterated the position it and EFF
had enunciated in August 1997, arguing that J-STD-025 goes too far in permitting location
information capabilities and fails to protect the privacy of packet-mode communications.  CDT
further argued that the additional surveillance enhancements sought by the FBI in the punch list are
not required under CALEA.  CDT stated that the telecommunications industry and the FBI had failed
to agree on a plan for preserving a narrowly-focused surveillance capability that would protect
privacy and, further, were now mired in an argument over designing additional surveillance features
into the nation's telecommunications system.  Finally, CDT stated that compliance with J-STD-025
was not reasonably achievable and requested that the Commission indefinitely delay implementation
of CALEA while a more narrowly-focused standard consistent with the intent of CALEA is
developed.
    19.   On March 27, 1998, DoJ and the FBI jointly filed a petition for expedited rulemaking,
asking the Commission to correct deficiencies in the industry standard by establishing additional
technical standards that meet the requirements of CALEA.  DoJ/FBI claim that the interim standard
adopted by industry is deficient because:  1) it does not ensure that law enforcement will be able to
receive all of the communications content and call-identifying information that carriers are obligated
to deliver under CALEA; and, 2) it fails to ensure that information will be delivered in a timely
manner.  DoJ/FBI set forth, as a proposed rule, the features (i.e., the punch list items) they believe
should be added to the interim standard to correct its deficiencies.  DoJ/FBI request that the
Commission leave the industry interim standard in effect pending the issuance of a final decision.
    20.   On April 2, 1998, TIA filed a petition for rulemaking, asking the Commission to
resolve the dispute as to whether the interim standard is overinclusive or underinclusive.  TIA
requested that we:  1) immediately announce suspension of enforcement of CALEA until we make
our determination of a permanent standard; 2) establish a reasonable compliance schedule of at least
24 months to implement the permanent standard; 3) undertake an expedited schedule for establishing
a permanent standard; and 4) remand any further technical standardization work to TIA
Subcommittee TR45.2.
    21.         On April 20, 1998, the Commission's Wireless Telecommunications Bureau and
Office of Engineering and Technology released a Public Notice in this proceeding soliciting
comment on the above petitions, as well as soliciting comment on whether the October 25, 1998
deadline for compliance with CALEA's capability requirements should be extended.  The Public
Notice also requested specific comment on the scope of the assistance capability requirements
necessary to satisfy the obligations imposed by CALEA.  In particular, the Public Notice requested
analyses of whether the technical requirements discussed in the petitions from CDT and from
DoJ/FBI are necessary for carriers to meet CALEA's Section 103 requirements.  Finally, the Public
Notice requested comment on remanding any additional standards development to TIA
Subcommittee TR45.2.
    22.         A number of parties petitioned the Commission to extend the October 25, 1998
deadline for complying with the core features of CALEA, and on September 11, 1998, the
Commission released a Memorandum Opinion and Order granting such an extension until June 30,
2000.  Pursuant to our authority under section 107(c) of CALEA, we determined that compliance
with the assistance capability requirements of Section 103 was not reasonably achievable by any
telecommunications carrier through the application of available technology by CALEA's compliance
deadline of October 25, 1998.  Therefore, we granted a blanket extension of CALEA's compliance
deadline until June 30, 2000, for all telecommunications carriers similarly situated to the petitioners,
i.e., those 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.
                        III.  DISCUSSION
A.  Authority and Approach
    23.         Upon petition, section 107(b) of CALEA empowers the Commission to establish, by
rule, technical requirements or standards to meet the assistance capability requirements of Section
103.  Additionally, section 301(a) of CALEA states that "[t]he Commission shall prescribe such
rules as are necessary to implement the requirements of [CALEA]."
    24.         In fulfilling our obligations under CALEA, our evaluation in this proceeding will
closely follow the plain language of the Act.  Pursuant to our statutory authority, we will separately
examine the two contested features of the J-STD-025 standard (i.e., the location information and
packet-mode features opposed by CDT) and the punch list items sought by the FBI, to determine
whether each meets the mandates of Section 103.
    25.         As an initial matter, we will first determine whether the specific item we are
evaluating meets the assistance capability requirements set forth in Section 103(a)(1)-(4).  In doing
so, we propose to interpret these provisions narrowly.  As noted above, we look to the plain
language, its context, and, if necessary, any legislative history that assists in ascertaining
Congressional intent.  Specifically, we explore below the intent of Congress' use of the terms
"equipment, facilities or services" in Section 103(a)(1) as it relates to the content of subject-initiated
conference calls.  We also seek to interpret Section 103(a)(2)'s provision that call-identifying
information must be provided to a LEA only if that information is "reasonably available" to a
telecommunications carrier.  In this regard, we tentatively conclude that before we can make a
determination whether a specific technical requirement meets the mandates of Section 103's
assistance capability requirements, the Commission must determine whether the information to be
provided to a LEA under Section 103(a)(2) is reasonably available to the carrier.  The Act does not
specify how the term "reasonably available" should be defined or interpreted, and the Act's
legislative history offers little additional guidance.  We therefore request comment on what factors
the Commission should use in determining whether the information to be provided to a LEA under
Section 103(a)(2) is reasonably available.
    26.   Specifically, we request comment on how cost should be considered in our
determination of reasonable availability.  Further, we note that carriers use a variety of system
architectures and different types of equipment, leading us to believe that reasonable availability is
also likely to vary from carrier to carrier.  Commenters should discuss how the Commission can
evaluate whether a particular technical requirement is reasonably available in these circumstances
and discuss how the application or interpretation of these terms in Section 103(a)(2) is similar to or
different from the application or interpretation of "reasonably achievable" in section 109(b), and the
factors listed there.
    27.   We also ask commenters to evaluate the type of information that has been traditionally
available under pen register and trap-and-trace authorizations, and whether the provision of such
information to LEAs, in light of the statutory definitions of "pen register" and "trap and trace
device", and judicial interpretations of them, provide guidance or represent possible factors for
determining "reasonable availability."
    28.   Finally, we also invite comment on whether and, if so, under what circumstances and
to what extent, information that does not qualify as call-identifying information under section 102(2)
or otherwise is not "reasonably available" under Section 103(a)(2), may nevertheless qualify as call
content information under Section 103(a)(1) and the definitions of "wire and electronic
communications" in 18 U.S.C.  2510(1), (12).  Commenters should take into account that the
provisions of Section 103(a)(1) do not include a criterion of "reasonable availability."
    29.   If we conclude that the item in question constitutes a technical requirement that meets
the Section 103 assistance capability requirements, we will then proceed to analyze each of the
factors identified by section 107(b) and seek comment on whether a particular technical requirement:
(1) meets the assistance capability requirements of Section 103 by cost-effective methods; (2)
protects the privacy and security of communications not authorized to be intercepted; (3) minimizes
the cost of such compliance on residential ratepayers; and, (4) serves the policy of the United States
to encourage the provision of new technologies and services to the public.  Additionally, section
107(b)(5) requires the Commission to provide 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.  Thus, we will also seek comment on issues
bearing on our section 107(b)(5) determinations.  If, on the other hand, we tentatively conclude that
a specific technical requirement falls outside of the parameters of the assistance capability
requirements established by Section 103, we will seek comment on our tentative conclusion, and
request that commenters responding to this conclusion provide support for their agreement or
disagreement by thoroughly analyzing the section 107(b) factors mentioned above.
    30.         We emphasize that, because CALEA specifically requires us to consider the section
107(b) factors, commenters are strongly encouraged to provide us with information as detailed and
specific as possible.  For sections 107(b)(1) and (3), for example, we seek detailed comment
regarding the costs of adding a feature to a telecommunications carrier's network and on what, if any,
impact of such costs will have on residential ratepayers.  Commenters should consider the costs to
manufacturers in developing the equipment or software needed to implement the technical
requirement, as well as the cost to carriers to install and deploy such equipment.  Commenters should
be specific as to which entities would incur the cost of adding particular features; e.g.,
manufacturers, local exchange carriers (LECs), interexchange carriers (IXCs), or commercial mobile
radio service (CMRS) providers, etc.  Commenters should also be specific as to what costs would
be incurred for hardware, as opposed to software upgrades to carriers' networks, and whether some
of these upgrades would have other uses in the networks.  If costs are likely to be passed on to
residential ratepayers, those costs should be identified, as well as specific mechanisms that could be
used to minimize such costs.
    31.         Under section 107(b)(2), if a party believes that a proposed technical requirement
would not protect the privacy and security of communications not authorized to be intercepted, we
request comment on modifications or alternative technical requirements that would enable Section
103's capability requirements to be met.  In addition, we seek detailed information on whether our
determination that a particular feature must be provided under CALEA will encourage or discourage
the provision of new technologies and services to the public.  Will the implementation of a particular
technical requirement constrain a carrier's ability to develop new services or technologies?
Commenters should provide a projected timeline for each technical requirement, identifying the time
needed to develop, test, and deploy it.  Additionally, commenters should address the extent to which
the capacity requirements of section 104 should affect our determinations under section 107(b).  In
this regard, we observe that several commenting parties have contended that the nearly two and
one-half years of delay in publication of the final notice of capacity has, in turn, impaired the ability
of standards-setting associations, telecommunications equipment manufacturers, and
telecommunications carriers to establish capability standards pursuant to Section 103, because
capability standards cannot be completed without first knowing the capacity that those capability
standards must support.  Finally, we ask for comment on any conditions necessary for compliance
and any specific obligations that should be imposed on telecommunications carriers during the
transition to a new standard.
    32.         We note that the tentative conclusions we reach in this Further NPRM focus on the
technical requirements that the petitioners have asked us to address in their petitions pending before
us, i.e., the two contested features of J-STD-025 and the nine punch list items.  In making our
tentative decision, we recognize that CALEA requires carriers to ensure that their networks can
provide the capabilities defined in Section 103, but does not mandate use of, or adherence to, any
particular standard.  In other words, compliance with the industry standard is voluntary, not
compulsory.  As a result, carriers are free to develop CALEA solutions in any manner they choose.
Thus, a carrier may choose to utilize an industry standard as a safe harbor, or they may choose to
implement other solutions that meet the capability requirements of Section 103.  However, in order
for an adopted industry standard to satisfy the safe harbor provision of section 107(a), it must
incorporate all of the technical requirements that we ultimately determine meet the assistance
capability requirements of Section 103.
    33.         We note further that this proceeding does not involve any attempt to interpret statutes
other than CALEA or define the scope of authorizations needed by LEAs to intercept or obtain call
content or call-identifying information.  Rather, this proceeding is limited to determining, as a safe
harbor, what capabilities each carrier must provide if and when presented with a proper authorization
or court order to expeditiously provide LEAs access to call content and call-identifying information.
    34.         We believe that industry is in the best position to determine how to implement these
technical requirements most effectively and efficiently.  Standards-setting organizations,
manufacturers, and/or individual telecommunications carriers should develop the technical
requirements consistent with our ultimate determinations reached in this proceeding.  We tentatively
conclude that it would then be appropriate for industry, in consultation with the law enforcement
community, to develop a final "safe harbor" standard for CALEA compliance.  We seek comment
on this conclusion.
    35.         Finally, we also note that manufacturers and carriers are free to develop and deploy
additional features and capabilities, beyond those required by CALEA, in efforts to assist law
enforcement agencies in conducting lawfully-authorized electronic surveillance.  Such capabilities,
however, will not be subject to any of CALEA's obligations, including cost recovery, and will not
affect any party's obligations under CALEA in any way.  Thus, nothing in the instant Further NPRM
should be construed as limiting or proposing to limit telecommunications manufacturers, carriers or
support service providers' ability to negotiate with law enforcement agencies to add additional
capabilities to the carrier's systems, nor to define a maximum level of capabilities available to law
enforcement under the applicable provisions of law.  We now turn to a discussion of whether we
should reexamine the uncontested portions of J-STD-025 as part of our section 107(b) inquiry.
B.  Industry Interim Standard J-STD-025
    36.   The industry interim standard, J-STD-025, which applies only to wireline, cellular,
and broadband PCS carriers, specifies that telecommunications carriers are to provide LEAs with
two telecommunications channels to perform electronic surveillance -- call content channels (CCCs)
and call data channels (CDCs).  J-STD-025 defines the five functions of the intercept architecture
to be used.  Those functions are:
               Access -- Provides the LEA with the ability to isolate the subject's call content or
        call-identifying information accurately and unobtrusively.  The access function helps
        to prevent the unauthorized access, manipulation, and disclosure of intercept controls,
        call content, and call-identifying information.
               Delivery -- Accepts call content and call-identifying information from the access
        function and delivers it to one or more LEA collection functions.  Ensures that the
        call content and call-identifying information that are delivered are authorized for a
        particular LEA, and thus also prevents the unauthorized access, manipulation, and
        disclosure of intercept controls, call content, and call-identifying information.
               Collection -- Receives and processes call content and call-identifying information
        for the subject.  (This function is the responsibility of the LEA.)
               Service Provider Administration -- Controls the carrier's electronic surveillance
        functions.  (This function is beyond the scope of the interim standard.)
               Law Enforcement Administration -- Controls the LEA electronic surveillance
        functions.  (This function is the responsibility of the LEA, and is also beyond the
        scope of the interim standard.)
    37.   Telecommunications carriers and manufacturers in their comments support adoption
of J-STD-025 as the final CALEA standard.  The Ameritech Operating Companies and Ameritech
Mobile Communications, Inc. (Ameritech) state that J-STD-025 is industry's attempt to realistically
and reasonably interpret the requirements of CALEA consistent with Title III of the Omnibus Crime
Control and Safe Streets Act of 1968, modified by the Electronic Communications Privacy Act of
1986 (collectively, "Title III").  Ameritech contends that the FBI's challenge of only a limited
number of items not included in J-STD-025 is a testament to the industry's efforts in developing a
workable solution.
    38.   BellSouth Corporation, Inc., BellSouth Telecommunications, Inc., BellSouth Cellular
Corp., BellSouth Personal Communications, Inc., and BellSouth Wireless Data, L,P. (BellSouth)
request that we adopt J-STD-025 in its present form pursuant to section 107.  BellSouth maintains
that the FBI is attempting to use CALEA as a vehicle to require carriers to build technology into
their systems to give law enforcement new expanded surveillance capabilities, and that such
expanded capabilities are in contrast to Congress's intent that CALEA should merely ensure that
lawful surveillance capabilities not be diminished.  BellSouth concludes that the legislative history
of CALEA makes clear that its purpose is to preserve (not enhance) government electronic
surveillance capabilities; to protect the privacy of customers' communications; and to not impede
the industry's development and deployment of new technology, features, or services.
    39.   AT&T Corporation (AT&T) states that the Commission should categorize standards
issues into four distinct components for examination (call content, call-identifying information,
privacy protection, and wiretap administration), and ask whether the industry standard meets
CALEA's requirements, if any, for each category.  AT&T concludes that we should affirm J-STD-
025 and reject the additional, enhanced surveillance features sought by DoJ/FBI in their Petition.
    40.   TIA states that the vast majority of comments support the conclusion that J-STD-025
is consistent with CALEA.  TIA contends that CALEA imposes a standard of "reasonable
availability" rather than "historical availability," and that section 107(b) of that statute permits the
Commission to modify a telecommunications industry "safe harbor" compliance standard only where
the standard is deficient for failure to satisfy the assistance capability requirements of Section 103(a).
TIA maintains, however, that J-STD-025 is not deficient and therefore no Commission action is
required.
    41.   DoJ/FBI state that J-STD-025 includes a number of important capabilities that are
required by law enforcement, but argue that the interim standard is deficient by virtue of its failure
to include the requested punch list capabilities.  DoJ/FBI claim that every one of the capabilities in
their punch list was originally included by industry itself in the initial working draft document
(PN3580) for the industry standard.  To remedy this alleged deficiency, DoJ/FBI recommend that
we use the proposed rule set forth in their March 1998 Petition as the basis for our standards
rulemaking.  Alternatively, DoJ/FBI state that we could base our standards rulemaking on an
alternative rule that we preliminarily conclude is warranted under section 107(b) of CALEA.
    42.   CDT disagrees with all of the above parties, arguing that J-STD-025 is deficient by
virtue of being overinclusive.  CDT states that the initial wiretap law, Title III, had as its dual
purpose protecting the privacy of wire and oral communications and delineating on a uniform basis
circumstances and conditions under which the interception of wire and oral communications may
be authorized.  CDT further states that the Electronic Communications Privacy Act extended Title
III to wireless and non-voice communications and established rules for law enforcement's use of pen
registers and trap and trace devices.  CDT contends that Congress sought to preserve an appropriate
balance in CALEA, but that the FBI's approach would require the opposite of what Congress
intended.  Specifically, CDT objects to J-STD-025 providing location information and packet-mode
call content information to law enforcement, and maintains that the additional capabilities requested
by DoJ/FBI would provide a flood of constitutionally-protected information to law enforcement that
would go well beyond anything that has historically been available under a pen register or trap and
trace authority.  Additionally, CDT asserts, provision of capabilities that go beyond CALEA's
requirements would drive up costs for telecommunications carriers.  CDT concludes that the
DoJ/FBI approach to CALEA, unless rejected by the Commission, would impermissibly expand the
amount of information that law enforcement would receive under pen register and trap and trace
authority.
    43.   The Electronic Privacy Information Center (EPIC)/EFF/American Civil Liberties
Union (ACLU) argue that J-STD-025 exceeds the scope of CALEA and thus should be rejected.
EPIC/EFF/ACLU state that the Commission must adhere to the privacy protections afforded by the
Fourth Amendment (against unreasonable searches and seizures) and Congressional mandates,
provide privacy protections that withstand the evolution of new technologies, and construe law
enforcement's surveillance authority narrowly with respect to new technologies.  EPIC/EFF/ACLU
contend that neither provision of location information nor packet data was mandated by CALEA.
They further contend that CALEA expands the privacy protections of the 1986 Electronic
Communications Privacy Act in the area of cordless telephones and certain radio-based
telecommunications, and that the Act was narrowly drawn to remedy enumerated FBI complaints,
not to extend law enforcement's general surveillance authority. Additionally, EPIC/EFF/ACLU
assert that the proceedings leading up to adoption of the interim standard were effectively closed to
non-law enforcement and non-telecommunications industry participants.  EPIC/EFF/ACLU
conclude that the Commission should reject the industry standard and commence a proceeding to
establish the standards that will be used to implement CALEA.
    44.   Discussion.  In seeking to fulfill our obligations under the Act, the Commission
acknowledges the immense time and effort both industry and government representatives have put
into the development of CALEA standards.  We also appreciate the input and involvement of privacy
organizations in this proceeding.  We further note that the Act expresses a preference for industry
to set CALEA standards, in consultation with the Attorney General, and that the Act's legislative
history also reveals that Congress envisioned that industry would have primary responsibility in
defining standards.  Consequently, we believe that the most efficient and effective method for
ensuring that CALEA can be implemented as soon as possible is to build on the work that has been
done to date.
    45.   We therefore do not intend to reexamine any of the uncontested technical
requirements of the J-STD-025 standard.  Instead, we will make determinations only regarding
whether each of the location information and packet-mode provisions currently included within J-
STD-025, and the nine punch list items that are currently not included, meet the assistance capability
requirements of Section 103.  We base this approach on the fact that the issues raised in the petitions
and comments filed in this proceeding focus solely on the location information and packet-mode
provisions of J-STD-025 and the nine punch list items sought by the FBI.  Accordingly, these
features will be evaluated separately.  We further note that no party has raised any specific
challenges to J-STD-025 other than with respect to these issues, and we have not been presented with
any compelling reason to reexamine the entire standard.  We tentatively conclude that by limiting
our inquiry to only these specific technical issues, we will better enable manufacturers and carriers
to build on the extensive work already completed or in process, and permit them to deploy CALEA
solutions on a more expedited basis.  Accordingly, the uncontested technical requirements are
beyond the scope of this proceeding.
    46.   In establishing technical requirements or standards, section 107(b)(5) requires the
Commission to provide a "reasonable time" for carriers to comply with and/or transition to any new
standards and to define the obligations of telecommunications carriers under Section 103 during any
transition period.  We previously concluded in our decision under section 107(c) that
telecommunications carriers must have installed CALEA-compliant equipment and facilities based
on the "core" features of J-STD-025 by June 30, 2000.  A footnote in that decision indicated that
the "core" of J-STD-025 excludes both the location information feature and the packet-mode
feature.  We now clarify those findings as follows.  J-STD-025 represents an attempt by industry
to develop a standard that carriers may choose to adopt voluntarily as a means to comply with
CALEA's "safe harbor" provision set forth in section 107(a).  We further recognize that the statute
leaves carriers with the discretion to choose to comply with CALEA by other means.  We emphasize
that in requiring carriers to comply with the core features of J-STD-025 by June 30, 2000, we did
not intend for the Extension Order to alter the substantive requirements of CALEA.  Rather, we
meant only to extend the deadline for compliance.  Thus, we now clarify our Extension Order by
requiring that by June 30, 2000, carriers must either have installed the core features of J-STD-025
to take advantage of the "safe harbor" provision of section 107(a) of CALEA or have otherwise
developed an individual solution and installed capabilities that meet the assistance capability
requirements of Section 103.  We believe that this approach is more consistent with the language of
the statute and the legislative history on this point.  In addition, we now propose to modify
footnote 139 of the Extension Order to include the location information feature as part of the core
of J-STD-025 which, if chosen by carriers as a means to qualify for the "safe harbor," must be
implemented by the June 30, 2000 deadline.
    47.   As detailed in the Extension Order, an extension until June 30, 2000 provides
sufficient time for manufacturers to produce CALEA compliant equipment based on the core
features of J-STD-025 or to develop individual network solutions and provides telecommunications
carriers sufficient time to purchase, test and install such equipment throughout their networks.  We
further recognize that the additional "non-core" technical requirements we propose to be adopted in
this rulemaking may require additional time for manufacturers to design and develop these
capabilities and for telecommunications carriers to incorporate them into their networks.  Thus, we
will consider establishing another deadline or an implementation schedule for telecommunications
carriers to comply with any new technical requirements we ultimately adopt in the instant
proceeding.  We seek comment on this proposal.  Specifically, we ask carriers and manufacturers
to supply us with timelines that detail how they plan to develop and deploy the additional technical
requirements noted herein.
C.  Particular Capabilities of J-STD-025 Opposed by CDT
    1.        Location Information
    48.   Background.  J-STD-025 includes a "location" parameter that would identify the
location of a subject's "mobile terminal" whenever this information is reasonably available at the
intercept access point and its delivery to law enforcement is legally authorized.  Location
information would be available to the LEA irrespective of whether a call content channel or a call
data channel was employed.
    49.   CDT objects to the inclusion of a location parameter in J-STD-025, stating that its
inclusion violates the balance established by the Act between law enforcement and privacy by
mandating a location tracking capability that Congress did not intend to be included within
CALEA.  CDT asserts that location information does not fit within the definition of call-identifying
information, and that it must be deleted from the final standard because it goes beyond the
assistance capability requirements set forth in Section 103(a)(1)-(4).  EPIC/EFF/ACLU state that
CALEA excludes wireless services from any requirement to provide location-tracking information
to law enforcement.
    50.   Most other parties, however, either disagree with this position, or justify the inclusion
of location information in the industry interim standard as a compromise reached between industry
and law enforcement.  For example, SBC Communications, Inc. (SBC) claims that CDT has
overstated the capabilities of the J-STD-025 location feature.  SBC asserts that this feature does not
convert all wireless phones into location-tracking devices, but merely provides the ability to identify
the landline central office through which a cellular call is routed.  TIA states that while it is unclear
as to whether CALEA requires location information capabilities, such capabilities are reasonably
available to telecommunications carriers, and industry and law enforcement have reached a
reasonable compromise on incorporating this feature into J-STD-025.  AT&T voices a similar
view, stating that a feature to provide location information at the origination and at the termination
of wireless calls was included in J-STD-025 as a compromise to law enforcement's original, much
broader claim that CALEA required carriers to provide location information whenever a wireless
phone registered autonomously or as it moved from cell site to cell site.
    51.   By contrast, DoJ/FBI contend that information identifying the location of the cell site
or other network element handling a wireless communications falls squarely within the statutory
definition of "call-identifying information" contained in section 102(2) of CALEA, because it
identifies the origin or destination of the call.  Further, DoJ/FBI state, Section 103(a)(2) does include
location information under the category of "call-identifying information," but also requires law
enforcement to have authority beyond that "solely" applicable to the use of pen registers and trap and
trace devices.  Finally, DoJ/FBI state that the J-STD-025 location feature would require wireless
carriers to provide only cell site information, not the specific location of a subject's wireless phone,
and then only at the beginning and termination of the call.
    52.   Discussion.  We tentatively conclude that location information is call-identifying
information under CALEA.  The Act states that call-identifying information is "dialing or signaling
information that identifies the origin, direction, destination, or termination of each communication
generated or received by a subscriber by means of any equipment, facility, or service of a
telecommunications carrier."  We believe, contrary to the position of CDT and  EPIC/EFF/ACLU,
that location information identifies the "origin" or "destination" of a communication and thus is
covered by CALEA.
    53.   We also observe that in the wireline environment, irrespective of the precise nature
of law enforcement's surveillance authorization, LEAs have been able to obtain location information
routinely from the telephone number because the telephone number corresponds with location.  With
the telephone number, location information is available from a LEA's own 911/Enhanced 911 (E911)
database or from the telephone company's electronic records, such as the Loop Maintenance
Operating System (LMOS).
    54.   We note, however, that the location feature as it currently appears in J-STD-025 is
unclear.  In particular, we note that this feature refers to the identification of the location of a
subject's "mobile terminal," but does not specifically state whether it is the precise location of the
mobile terminal or handset that is intended, or simply the location of the cell site to which the
terminal or handset is connected.  Also unstated in J-STD-025 is whether continuous location
tracking is intended to be provided, or only the location at the beginning and termination of the call.
Nonetheless, we note that DoJ/FBI and industry appear now to agree that the standard covers only
the location of the cell site, and only at the beginning and termination of the call.
    55.   In view of the above analysis, we tentatively affirm that location information should
be construed to mean cell site location at the beginning and termination of a call.  We seek
comment on these proposals and, as required by section 107(b), on the other factors that we must
consider in establishing a technical requirement or standard.  We note that location information is
already included in J-STD-025, the interim standard adopted by industry, and was opposed solely
by the privacy groups.  Therefore, we request comment in particular on whether our proposal raises
issues regarding the protection of privacy and security of communications which are not authorized
to be intercepted.  As discussed above, we propose that the June 30, 2000 CALEA compliance
deadline also is sufficient for development and implementation of compliant equipment that includes
this feature.
    56.   Finally, we tentatively conclude that location information is reasonably available to
telecommunications carriers, because this technical requirement was developed by industry and is
included in the interim standard.  However, we request comment on how the Commission should
decide or interpret the term "reasonably available" in the context of the proposed location
information requirement.  For example, it appears that location information is already available
through the wireless carriers' billing, hand-off and system use features.  Additionally, wireless
carriers will be required to have a location information capability as part of their E911 obligations.
We seek comment as to whether the location information feature in these other contexts can be used
to address the needs of law enforcement under CALEA.  We request comment on any other issues
that may impact our determination as to whether the location information that would be required to
be provided to a LEA is reasonably available to carriers.
    57.   Commenters should also note CALEA's express statement 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), . . . 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)."  We agree with DoJ/FBI
that this provision does not exclude location information from the category of "call-identifying
information," but simply imposes upon law enforcement an authorization requirement different from
that minimally necessary for use of pen registers and trap and trace devices.  We seek comment
on this issue.
    2.  Packet-Mode
    58.   Background.  J-STD-025 provides for LEA access to call-identifying information and
the interception of wire and electronic telecommunications, regardless of whether the
telecommunications are carried in circuit-mode or in packet-mode.  It further states that the "call-
identifying information associated with the circuit-mode content surveillance is provided on the [call
data channel]," but does not specifically address whether call-identifying information, if any,
associated with packet-mode surveillance must be provided over a call data channel.
    59.   CDT challenges J-STD-025's treatment of intercepted packets as violative of the legal
balance between the rights of law enforcement and the rights of individuals to privacy, asserting that
the interim standard fails to require adequate privacy protections in packet-mode networks.
Specifically, CDT asserts that J-STD-025 does not require telecommunications carriers to excise call
content information from packets before providing the packets to law enforcement over call data
channels -- the interim standard merely permits the carriers to separate the information prior to
delivery, at their option.  CDT concludes that the interim standard would allow a LEA, possessing
only a pen register order, to receive all of the contents of a person's communications without any
effort by the carrier to excise the call content from the call-identifying information authorized for
delivery to the LEA.  Accordingly, CDT maintains that the treatment of packet transmissions in J-
STD-025 threatens to obliterate entirely the distinction between call content and dialed numbers or
similar signaling information.  CDT contends that Title III's "minimization" requirement is
inadequate to protect the privacy of call content in packet communications subject to a pen register
order because there is no such requirement under the pen register standard.
    60.   EPIC/EFF/ACLU concur with CDT, stating that the FBI seeks to obtain the full
content of a subject's packet-mode communications even when the government is authorized only
to intercept addressing or signaling information.  EPIC/EFF/ACLU contend that the provision of call
content to law enforcement in this situation would violate the minimization requirements of both the
Fourth Amendment and Title III, and would also violate Section 103(a)(4) of CALEA, which
requires the carriers to protect communications not authorized to be intercepted.
    61.   TIA disagrees with CDT and EPIC/EFF/ACLU, contending that their argument that
J-STD-025 is deficient because it permits delivery of an entire packet stream in response to a pen
register order fails to recognize the differences between circuit-mode and packet-mode technology.
TIA states that existing technology does not permit telecommunications carriers to provide separated
packet headers as call-identifying information.  TIA concedes, however, that it is unclear whether
the LEA has authority to access packet-mode communications under a pen register order.
    62.   DoJ/FBI argue that when a carrier delivers an entire packet stream to the LEA
pursuant to a pen register authorization, the LEA is legally precluded from recording or decoding
information other than dialing and signaling information.  DoJ/FBI state that the packet-mode
provisions of J-STD-025 rely on the existence of this legal safeguard to ensure that call content is
not improperly accessed in pen register cases.  DoJ/FBI also state that LEAs performing pen register
surveillance in an analog environment traditionally have received access to all information
transmitted over the subscriber's line on the local loop, including call content.  Accordingly, DoJ/FBI
contend, the packet-mode provisions do not represent a diminution of traditional privacy
protection.  SBC concurs, stating that law enforcement is not allowed to intercept call content
unless authorized to do so, and that sending the LEA an entire packet stream would not represent a
change from the status quo.
    63.   Discussion.  Packet data and packet-switching technology are potentially usable for
both information services and telecommunications services.  We first observe that Section
103(b)(2)(A) of CALEA expressly excludes "information services" from its assistance capability
requirements.  Thus, packet data and packet-switching technology is subject to these requirements
only to the extent it is used to provide telecommunications services, and not for information
services.  Packet-mode telecommunications services are expected to grow rapidly in the near
future.  J-STD-025 appears to be appropriately limited to apply only to "telecommunications
services" as defined by the Commission.  Second, we observe that CALEA requires
telecommunications carriers to provide information to the LEA "in a manner that protects . . . the
privacy and security of communications . . . not authorized to be intercepted."  This mandate
would seem to be violated if the carrier were to give the LEA both call-identifying and call content
information when only the former were authorized.  Under those circumstances, the LEA would be
receiving call content information without having the requisite authorization.
    64.   The record before us, however, is not sufficiently developed to support a proposal of
any particular CALEA technical requirements for packet-mode telecommunications.  Additional
analysis is needed.  We are aware that packet-mode technology is rapidly changing, and that
different technologies may require differing CALEA solutions.  We do not believe that the record
sufficiently addresses packet technologies and the problems that they may present for CALEA
purposes.  While it is premature to impose any particular technical requirements for packet-mode
telecommunications at this time, it is appropriate to ask for a full range of comment on this issue.
    65.   In seeking to develop a full record, we first set forth an analytical framework we
believe will prove useful for evaluating the issue of setting CALEA technical requirements for
packet-mode telecommunications.  First, we advise commenters to consider the difference between
connection-oriented and connectionless packet-mode services, and also between permanent virtual
circuits, which have no per-call information, and switched virtual circuits.  With these distinctions
in mind, we request that commenters provide detailed comments regarding whether and, if so, how
the statutory requirements of Section 103(a) of CALEA apply to packet-mode telecommunications.
We request comment on what constitutes the equivalent of "call-identifying information" for packet-
mode telecommunications services within the context of CALEA.  Will packet-mode call-identifying
information (or its equivalent) be reasonably available to carriers and, thus, subject to the provisions
of Section 103(a)(2) of CALEA?  How could packet-mode call content and call-identifying
information (or its equivalent) be separated for delivery to law enforcement in compliance with
CALEA?
    66.   In addition, we seek comment on the other section 107(b) factors that we must
consider in establishing technical requirements.  Specifically, we seek comment on any cost-
effective methods for incorporating CALEA packet-mode requirements into a telecommunications
carrier's system, and whether or not this can be accomplished in a manner that minimizes costs to
residential ratepayers.  Further, we request additional comment on whether the inclusion of packet-
mode technical requirements to meet the assistance capability requirements envisioned by Section
103 raises issues regarding the protection of privacy and security of communications which are not
authorized to be intercepted.  Additionally, we solicit comment on whether the inclusion of such
technical requirements would have a positive or negative effect on the provision of new technologies
and services to the public.  Commenters are also asked to provide detailed information regarding
the amount of time and conditions that they believe will be necessary to successfully develop and
deploy packet-mode technical requirements in telecommunications systems.  Finally, we recognize
that packet-mode issues are complex, and that relative to the other issues under consideration herein,
additional time may be required to resolve them.
D.  DoJ/FBI Punch List
    1.  General Comments
    67.   DoJ/FBI maintain that the nine FBI punch list items must be implemented if essential
law enforcement requirements are to be met.  DoJ/FBI assert that the basic goal of CALEA's
assistance capability requirements is to ensure that the technical ability of law enforcement to carry
out electronic surveillance meets, rather than falls short of, law enforcement's legal authority.
DoJ/FBI state that each of the nine capabilities missing from J-STD-025 and requested in the
DoJ/FBI Petition is firmly rooted in the language, legislative history, and policies of CALEA, and
that failure to provide these capabilities will result in serious injury to the government's ability to
enforce state and federal laws through electronic surveillance.
    68.   Telecommunications carriers and their representatives generally oppose inclusion of
any portion of the punch list in the final CALEA standard.  The United States Telephone Association
(USTA) states that J-STD-025 already represents a compromise on the part of industry.  AT&T
argues that industry and other public commenters have made a compelling case that the FBI punch
list of capabilities is not required by CALEA, whereas DoJ/FBI has made only a showing of how
beneficial the capabilities would be to future law enforcement surveillance.  AT&T contends that
the industry interim standard uses the precise definition of call-identifying information set forth in
CALEA, but that DoJ/FBI ask the Commission to go well beyond this definition by including as
"call-identifying" information:  subject-initiated dialing and signaling; party hold, drop, and join
messages; and notification messages of network-generated in-band and out-of-band signaling.
AT&T further argues that DoJ/FBI has not addressed section 107 of CALEA, which requires cost-
effective implementation of the statute.  AT&T contends that the DoJ/FBI punch list is really an
attempt to force telecommunications carriers to provide additional capabilities without
reimbursement from law enforcement.
    69.   BellSouth and CDT concur with AT&T's assessment regarding call-identifying
information.  BellSouth states that CALEA defines call-identifying information narrowly as the
numbers identifying the calling and called parties, and not other carrier network messages, tones,
signals, or information.  CDT contends that DoJ/FBI is attempting to use CALEA to include more
data in the category of call-identifying information to ensure that such data can be available under
the less stringent legal standards applicable for the LEA to obtain pen register and trap and trace
authority than is required under Title III for the LEA to obtain call content information.
    70.   Other parties concur with AT&T regarding cost-effective implementation of the punch
list.  AirTouch Communications, Inc. (AirTouch), for example, states that a vendor has advised
AirTouch that developing the punch list would require an effort exceeding by 160% the substantial
effort required to develop the industry standard.  AirTouch therefore maintains that implementation
of the punch list would be costly and would divert resources from developing new technologies and
services.  Sprint Spectrum L.P. d/b/a Sprint PCS (Sprint PCS) contends that implementation of
the punch list will almost certainly exceed the $500 million authorized by Congress for
implementation of CALEA.  US West, Inc. (US West) states that rate increases will likely be
necessary if telecommunications carriers are required to implement any of the additional capabilities
proposed by DoJ/FBI.
    71.   Bell Emergis - Intelligent Signalling Technologies (Bell Emergis), on the other hand,
states that the entire punch list can be adopted as an Addendum to J-STD-025.  Bell Emergis
contends that while there may be cost and technical difficulties in incorporating the punch list within
a switch-based approach, network-based solutions -- such as one it has developed -- meet the test of
both cost effectiveness and technical achievability.
    72.   DoJ/FBI disagree with commenters who reject the punch list, stating that these
commenters have a fundamental misunderstanding of the policies and goals of CALEA.  DoJ/FBI
contend that Section 103 imposes mandatory assistance capability obligations that must be met by
all telecommunications carriers, and assert that commenters who suggest that law enforcement
concerns are of no more than secondary importance in the CALEA legislation are incorrect.
DoJ/FBI conclude that if the Commission does not implement the punch list in its entirety, industry-
promulgated standards will effectively replace the underlying statutory requirements of Section
103.  Below we discuss each punch list item in detail.
    2.  Content of subject-initiated conference calls
    73.   Background.  This capability would permit the LEA to monitor the content of
conversations connected via a conference call set up by the facilities under surveillance.
Surveillance of all portions of a conference call would continue, even if any party to the call utilized
services such as hold, call waiting, or three-way calling.  For example, if anyone involved in a
conference call were placed on hold, all remaining conversations would continue to be available to
the LEA for monitoring.  The ability to monitor would continue even after the subject drops off the
conference call.
    74.   AirTouch states that there is no basis to impose an enhanced conference call
requirement on carriers.  AirTouch also states that it would appear to be easy for criminals to
bypass this feature if carriers were to deploy it because it would enable law enforcement to intercept
only those conference calls that use the facilities under surveillance and are supported by a
conference service provided by the subject's local carrier.  AirTouch maintains that law enforcement
would not be able to intercept conference calls when the subject no longer participates if the call is
set-up by another person using another telephone or if the subject initiates the call, but uses a
conference bridge service offered by another carrier or service provider.
    75.   TIA argues that CALEA does not require delivery of conference call conversations
that cannot be heard over a subscriber's facilities, but only communications that are to or from a
subscriber.  TIA states that implementation of this punch list item would result in an effectively
unlimited, and unwarranted, expansion of the "facilities" doctrine of Title III.  TIA states that,
despite the fact that the DoJ/FBI Petition acknowledges that "facilities" have historically been
considered for Title III purposes as the subscriber's "terminal equipment," DoJ/FBI now interpret
Title III as including not just the subscriber's facilities, but services as well.  Furthermore, in TIA's
view, implementation of this feature would violate the limits on wiretaps and other searches imposed
by the Fourth Amendment.  TIA argues that eliminating the required link to the subscriber's facilities
would take an interception far afield from the particular persons and places with regard to which law
enforcement has established "probable cause" warranting the electronic surveillance.
    76.   DoJ/FBI disagree with the above commenters, arguing that Title III does not require
the target of the investigation to be on the line in order for law enforcement lawfully to intercept
communications taking place over the facilities under surveillance or supported by the subscriber's
service.  DoJ/FBI state that it is the subscriber who pays for call conferencing capability and any
charges associated with the duration of the call itself, demonstrating that the subscriber's services
are involved even if the subscriber drops off the call.  DoJ/FBI maintain that Title III does not
confine the LEA to communications in which the individual under investigation -- who may or may
not be the subscriber -- is taking part.  DoJ/FBI acknowledge that the LEA is obligated to minimize
the interception of communications not otherwise subject to interception under Title III, but contend
that this minimization obligation does not foreclose the LEA from intercepting communications that
involve other criminal activity merely because they do not involve the target of a particular
investigation.  DoJ/FBI conclude by stating that where a conference call continues to be carried by
the subscriber's facilities and supported by the subscriber's services even when the subscriber is not
on the line, the communications of all parties to such a call are covered by Section 103(a)(1) of
CALEA.
    77.   Discussion.  We tentatively conclude that the provision of the content of subject-
initiated conference calls is a technical requirement that meets the assistance capability requirements
of Section 103.  With appropriate lawful authorization, the LEA is entitled 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."  TIA
asserts that we must first determine whether a conference call capability would unduly expand Title
III's concept of "facilities" before deciding whether such a capability is required under CALEA.
We note, however, that the plain language of CALEA's Section 103 includes the terms "equipment"
and "services", in addition to "facilities."  Also, according to the legislative history, "conference
calling" is one of the "features and services" that is covered by CALEA.  We seek comment on
our tentative conclusion.  We also seek comment as to how the Commission should define or
interpret Section 103's use of the phrase "equipment, facilities, or services" in the context of
subscriber-initiated conference calls.
    78.   We recognize that different carriers provide conference calling features in various
ways and that not all carriers' system architecture is the same.  Some carriers, for example, may have
systems that support continuation of conference calls after the subscriber drops off the call, while
others may not.  For those network configurations in which, when a subscriber drops off a
conference call, the call nevertheless remains routed through the subscriber's "equipment, facilities,
or services," we tentatively interpret CALEA as requiring the carrier to continue to provide to the
LEA the call content of the remaining parties, pursuant to court order or other lawful authorization.
For those configurations, however, in which, when the subscriber drops off the call, the call is either
disconnected or rerouted, and the "equipment, facilities, or services of a subscriber" are no longer
used to maintain the conference call, we tentatively conclude that CALEA does not require the
carrier to provide the LEA access to the call content of the remaining parties.  Moreover, in some
cases where the call is re-routed, the content of the call may no longer be classifiable as
"communications carried by the carrier within a service area" pursuant to Sections 103(a)(1) and
(d).  Thus, under such circumstances, CALEA would not require the carrier to modify its system
architecture in order to support this particular technical requirement.  We seek comment on this
tentative conclusion.  Commenters should address how Sections 103(a)(1) and (d) should be
interpreted in this context.  Also, we tentatively conclude that CALEA does not extend to
conversations between a participant of the conference call other than the subject and any person with
whom the participant speaks on an alternative line (e.g., when A, the subject, is on a conference call
with B and C, we tentatively conclude that C's conversation with D on call waiting is beyond
CALEA's requirements.  We also seek comment on this tentative conclusion.
    79.   Additionally, we seek comment on the section 107(b) factors that we must consider
in establishing a technical requirement or standard.  Are there cost-effective methods of
incorporating access to conference call content into a telecommunications carrier's system?  Can it
be accomplished in a manner that minimizes costs to residential ratepayers?  Further, we request
comment on whether this proposal raises issues regarding the protection of privacy and security of
communications which are not authorized to be intercepted.  Additionally, we solicit comment on
whether the inclusion of this technical requirement within the assistance capability requirements
envisioned by Section 103 would positively or negatively affect the provision of new technologies
and services to the public.  Would, for example, networks have to be redesigned in such a way as
to preclude certain new technologies or services?  Finally, commenters are asked to provide detailed
information regarding the amount of time and conditions that they believe will be necessary to
successfully develop and deploy this technical requirement in telecommunications systems.
    3.  Party hold, join, drop on conference calls
    80.   Background. This item also involves features designed to aid a LEA in the
interception of conference calls.  This feature would permit the LEA to receive from the
telecommunications carrier messages identifying the parties to a conversation at all times.  The party
hold message would be provided whenever one or more parties are placed on hold.  The party join
message would report the addition of a party to an active call or the reactivation of a held call.  The
party drop message would report when any party to a call is released or disconnects and the call
continues with two or more other parties.
    81.   AT&T states that DoJ/FBI admit that they have not received party hold, drop, and join
messages in the past, but DoJ/FBI claim this information is now needed so that law enforcement can
demonstrate that a party hears material portions of a communications.  AT&T contends, however,
that these messages will not indicate to law enforcement whether a party hears or does not hear any
communication because the party may or may not be listening at relevant times.  AT&T further
contends that its review of all wiretapping cases discloses no decision where such information was
an issue in any decided case.  AT&T maintains that J-STD-025 already provides law enforcement
with all numbers dialed or received from any participant to multi-party calls; change messages
whenever call-identities are merged, split, or changed; and a message identifying when the resources
for all legs of a call are released.  AT&T concludes, therefore, that addition of the instant punch list
item is unnecessary to identify the call.
    82.   BellSouth states that the call-identifying information intended by CALEA to be
provided to law enforcement is simply the telephone number indicating call origination or
destination.  BellSouth argues that the additional information sought by law enforcement, such as
which parties are on a call, do not constitute origination or destination telephone numbers, and
therefore cannot be categorized as "call-identifying information."  Moreover, BellSouth argues, party
hold, drop, and join message information would be extremely difficult to provide because, in all but
the simplest cases, conference calls are established in a remote bridge, separate from the voice
switch.
    83.   TIA states that the industry interim standard already requires provision of information
that substantially satisfies the party join/drop capabilities requested by DoJ/FBI.  Thus, TIA
maintains, law enforcement's primary dispute regarding this issue is that J-STD-025 does not require
a real-time message to be delivered to law enforcement whenever a participant is placed on hold or
released from hold by the subject.  However, TIA argues, party hold information is not call-
identifying information nor is it reasonably available to the carrier.  TIA also states that a party who
is not on hold may stop listening or walk away from the phone -- thus, the DoJ/FBI rationale for
adding this feature, that "without these messages, law enforcement would not know who joins or
leaves a conference call, whether the subject alternated between calls, or which parties heard or said
parts of the conversation," is unpersuasive.  Rather, TIA states, the only persuasive evidence that a
party heard an intercepted statement is a demonstration that the party responded to the statement.
    84.   DoJ/FBI disagree with the above parties, contending that party hold/join/drop
messages constitute call-identifying information.  DoJ/FBI contend that carriers are obligated under
Section 103(a)(1) to provide this information, regardless of whether the LEA could have acquired
it through traditional monitoring techniques in the past.  DoJ/FBI state that party hold/join/drop
messages enable the LEA to identify who is connected in a subject's conference call at any point in
the conference.  Without these messages, according to DoJ/FBI, the LEA would not know who joins
or leaves a conference call, whether the subject alternated between calls, or which parties heard or
said particular parts of a conversation.  Therefore, according to DoJ/FBI, this information must be
added to the industry standard to ensure that the assistance capability requirements of Section 103(a)
of CALEA are met as intended by Congress.
    85.   Discussion.  We tentatively conclude that party hold/join/drop information falls within
CALEA's definition of "call-identifying information" because it is "signaling information that
identifies the origin, direction, destination, or termination of each communication generated or
received" by the subject.  For example, party join information appears to identify the origin of a
communication; party drop, the termination of a communication; and party hold, the temporary
origin, temporary termination, or re-direction of a communication.  This capability also appears to
be necessary to enable the LEA to isolate call-identifying and content information because, without
it, the LEA would be unable to determine who is talking to whom, and, more accurately, to focus
on the subject's role in the conversation.  Further, by isolating the call-identifying information in
this manner, the LEA can ascertain and isolate third parties who are not privy to the communications
involving the subject, thereby furthering the minimization concept.
    86.   Accordingly, we propose that provision of party hold/join/drop information, if
reasonably available to the carrier, is a technical requirement that meets the assistance capability
requirements of Section 103.  We base this conclusion on the statutory language found in Sections
103(a)(2) and 102(2).  We note, however, that LEA access to this information would be required
only in those cases where the carrier's facilities, equipment or services are involved in providing the
service; in other words, when a network signal is generated.  To the extent that customer premises
equipment (CPE) is used to provide such features, we tentatively conclude that party hold/join/drop
information could not be reasonably made available to the LEA since no network signal would be
generated.  For example, many telephone sets have a "hold" button that does not signal the network
-- thus, from the carrier's point of view, the call's status is unchanged.  We seek comment on this
tentative conclusion.  We also seek comment on TIA's assertion that party/hold/join drop
information is already substantially available to the LEA and, if so, whether it is or needs to be
provided in real time.
    87.   We seek comment on our proposal and, as required by section 107(b), on the other
factors that we must consider in establishing a technical requirement or standard.  Are there cost-
effective methods of incorporating a party hold/join/drop capability into a telecommunications
carrier's system?  Can it be accomplished in a manner that minimizes costs to residential ratepayers?
Further, we request comment on whether this proposal raises issues regarding the protection of
privacy and security of communications which are not authorized to be intercepted.  Additionally,
we solicit comment on whether the inclusion of this technical requirement within the assistance
capability requirements envisioned by Section 103 would positively or negatively affect the
provision of new technologies and services to the public.  Further, commenters are asked to provide
detailed information regarding the amount of time and conditions that they believe will be necessary
to successfully develop and deploy this technical requirement in telecommunications systems.
    4.  Subject-initiated dialing and signaling information
    88.   Background.  This capability would permit the LEA to be informed when a subject
using the facilities under surveillance uses services such as call forwarding, call waiting, call hold,
and three-way calling.  DoJ/FBI requests this information for each communication initiated by the
subject. This capability would require the telecommunications carrier to deliver a message to the
LEA, informing the LEA that the subject has invoked a feature which would place a party on hold,
transfer a call, forward a call, or add/remove a party to a call.
    89.   USTA and US West state that such dialing and signaling activity goes beyond the
definition of call-identifying information set forth in CALEA.  TIA concurs, contending that
DoJ/FBI offer no evidence that failure to provide information on all such signaling activity will
impair the ability of law enforcement to determine the destination of communications.  TIA also
contends that the DoJ/FBI petition does not identify any specific signaling activity that is both
required by CALEA and is not already required to be provided under the industry interim standard,
provided it is reasonably available.  TIA states that the only additional information that would be
available under the DoJ/FBI request is the identity of the actual keys pressed by the subject, but
argues that this information is not required by CALEA, as it is not reasonably available and not built
into the network.
    90.   DoJ/FBI disagree with the above parties, contending that such dialing and signaling
activity is call-identifying information.  Further, DoJ/FBI maintain that in the past the LEA was able
to detect flash hook signaling by changes to the electric signals on the analog local loop, but that
digital switching now prevents the LEA from having this capability.  DoJ/FBI state that without
access to such dialing and signaling activity the LEA may be unable to determine what has happened
to a call when the direction, or the destination, of the call dramatically changes.  For example,
according to DoJ/FBI, a subject may use his/her flash hook capability to move back and forth
between two associates on concurrent calls, and without the receipt of a message showing this
signaling activity, the LEA may be unable to follow the course of the conversation or determine to
whom the subject is speaking at any given point.
    91.   Discussion.  We tentatively conclude that subject-initiated dialing and signaling
information fits within the definition of call-identifying information contained in section 102(2) of
CALEA.  For example, call-forwarding signaling information identifies the direction and destination
of a call, and call-waiting signaling information identifies the origin and termination of each
communication.  We request comment on whether remote operation of these features should affect
our tentative conclusion.  For example, a subject may be able to change some aspects of his/her
service from a pay telephone, as well as from the subject's telephone.
    92.   We also tentatively conclude that access to subject-initiated dialing and signaling
information may be necessary in order for the LEA to isolate and correlate call-identifying and call
content information.  Knowing what features a subject is using will ensure that the LEA receives
information "in a manner that allows it to be associated with the communication to which it
pertains."  For example, without knowing that a subject has switched over to a call on call-waiting,
the LEA may not be able to associate the call-identifying information with the call content to which
it pertains and thus could be more likely to mistake one call for another.  Once again, to the extent
CPE is used to perform any of the functions described here, and no network signal is generated, that
information will not be reasonably available to a carrier, and thus, should not be required to be
provided.
    93.              We observe that signaling data indicating that the subject is accessing his/her voice
mail is properly classified as "call-identifying information."  The contents of the voice mail,
however, fall outside the scope of CALEA.  This is because voice mail "permits a customer to
retrieve stored information from . . . information storage facilities," and CALEA does not apply
to information services.  The requirement we propose below is consistent with this distinction
because it provides only the call identifying information and is not capable of providing voice
content.
    94.   Accordingly, we propose to include information on subject-initiated dialing and
signaling that is reasonably available to the carrier as a technical requirement necessary to meet the
assistance capability requirements of Section 103.  We base our conclusion regarding
subject-initiated dialing and signaling information that is reasonably available to the carrier on the
statutory language found in Sections 103(a)(2) and 102(2).  We seek comment on this proposal and,
as required by section 107(b), on the other factors that we must consider in establishing a technical
requirement or  standard.  Are there cost-effective methods of providing subject-initiated dialing and
signaling information?  Can this requirement be accomplished in a manner that minimizes costs to
residential ratepayers?  Further, we request comment on whether this proposal or tentative
conclusion raises issues regarding the protection of privacy and security of communications which
are not authorized to be intercepted.  Additionally, we solicit comment on whether the inclusion of
this technical requirement within the assistance capability requirements envisioned by Section 103
would positively or negatively affect the provision of new technologies and services to the public.
Commenters are asked to provide detailed information regarding the amount of time and conditions
that they believe will be necessary to successfully develop and deploy this technical requirement in
telecommunications systems.  In addition, excluding those CPE-controlled features noted above, we
request comment on whether information required to provide LEAs with subject-initiated dialing
and signaling activity is reasonably available to carriers.  Finally, we recognize that some
commenters assert that at least portions of this technical requirement may be provided through other
features of J-STD-025.  We request comment on the accuracy of these contentions.  Commenters
should demonstrate clearly how the features required are provided, or not provided, elsewhere in J-
STD-025.
    5.  In-band and out-of-band signaling
    95.   Background.  This technical requirement would allow a telecommunications carrier
to send a notification message to the LEA when any network message (ringing, busy, call waiting
signal, message light, etc.) is sent to a subject using facilities under surveillance.  For example, if
someone leaves a voice mail message on the subject's phone, the notification to the LEA would
indicate the type of message notification sent to the subject (such as the phone's message light, audio
signal, text message, etc.).  For calls the subject originates, a notification message would also
indicate whether the subject ended a call when the line was ringing, busy (a busy line or busy trunk),
or before the network could complete the call.
    96.   BellSouth states that, for telecommunications carriers to be able to signal a LEA
whenever a subject's service sends a network message to the subject or an associate, significant
technical upgrades to the carriers' facilities would be needed, and even then the LEA would receive
mostly redundant information.  PrimeCo Personal Communications, L.P. (PrimeCo) concurs and
argues that this information is already readily available through the audio portion of a call content
intercept and, therefore, to procure this information, the LEA should be required to obtain a Title III
authorization.  PrimeCo contends that Congress did not intend to "require the specific design of
systems or features" that would be required to implement this capability as a "call-identifying"
technical requirement.
    97.   TIA states that DoJ/FBI define network-generated in-band and out-of-band signaling
information to include any alerting of incoming calls or messages, audible indications of incoming
calls or messages, visual indications of incoming calls or messages, and alphanumeric display
information.  TIA contends that, to the extent J-STD-025 does not already provide this information,
the information is not "call-identifying" and is not required by CALEA to be provided on a call data
channel.
    98.   DoJ/FBI contend that in-band and out-of-band signaling identifies the "direction,
destination, and/or termination" of a communication, and therefore is call-identifying information
that must be provided under CALEA.  DoJ/FBI believe that the interim standard is deficient with
respect to this capability because it does not allow the LEA to ascertain what a subject hears and sees
when a call is not completed.  DoJ/FBI assert that the capability they are requesting is appropriately
limited in scope because it relates only to signaling from the subscriber's service.
    99.   Discussion.  We believe that certain types of in-band and out-of-band signaling
information, such as notification that a voice mail message has been received by a subject,  constitute
call-identifying information under CALEA.  Nevertheless, there may also be other types of in-band
and out-of-band signaling information that would constitute call content information and thus would
raise questions as to under what authority they should be provided to the LEA.  However, for
purposes of this proceeding, we do not address such questions of whether or what type of
authorization LEAs would need to access such information.  This is up to the judicial branch.  Unless
necessary to establish technical standards under CALEA's safe harbor, it is not our intention to
specifically decide whether certain types of in-band or out-of-band signaling is either call content
or call-identifying information since CALEA requires that carriers have the ability to provide access
to both.  We request comment on what types of in-band and out-of-band signaling should constitute
a technical requirement necessary to meet the assistance capability requirements envisioned by
Section 103.
    100.             Also, in the event that we ultimately determine that in-band and out-of-band signaling
is a technical requirement necessary to meet the assistance capability requirements under Section
103, we request comment on whether there are cost-effective methods of providing in-band and out-
of-band signaling to a LEA.  Can this requirement be accomplished in a manner that minimizes costs
to residential ratepayers?  Further, we request comment on whether this requirement raises issues
regarding the protection of privacy and security of communications which are not authorized to be
intercepted.  Additionally, we solicit comment on whether the inclusion of this technical requirement
within the assistance capability requirements envisioned by Section 103 would positively or
negatively affect the provision of new technologies and services to the public.  Commenters are
asked to provide detailed information regarding the amount of time and conditions that they believe
will be necessary to successfully develop and deploy this technical requirement in
telecommunications systems.
    6.  Timing information
    101.             Background.  In those cases where the LEA has obtained authorization to intercept
both content and call-identifying information, this capability would require that a
telecommunications carrier send call timing information to the LEA so that the LEA could associate
the call-identifying information with the actual content of the call.  There would be two elements to
this capability:
        1) Each call-identifying message (answer message, party join message, party drop
    message, etc.) would be time stamped within a specific amount of time from when
    the event triggering the message occurred in the intercept access point.  This time-
    stamp would allow the LEA to associate the message to the call content information
    (i.e., the conversation).
        2) A carrier would be required to send the message to the LEA within a defined
    amount of time from the event to permit the LEA to associate the number dialed to
    the conversation.
    102.             TIA states that these timing requirements are inconsistent with the capabilities of
existing telecommunications networks and lack any basis in CALEA.  US West concurs, and states
that implementation of these capabilities would be quite expensive.  PrimeCo states that carriers
vary considerably in size and technical resources, and therefore adoption of a uniform timing
standard is not appropriate.  BellSouth contends that establishing an arbitrary timing requirement,
without a thorough knowledge of how CALEA will be implemented, is inappropriate.  SBC states
that the timing of delivery of call-identifying information is a function of network and equipment
design, and that DoJ/FBI cannot point to an actual case in which the timing of a carrier's delivery
of call-identifying information has ever led to a crime that otherwise would have been prevented.
    103.             DoJ/FBI disagree with the above parties, arguing that a timing capability is essential
to law enforcement.  DoJ/FBI cite a kidnapping as an example of a situation where timely delivery
of call-identifying information is critical.  DoJ/FBI state that in such a situation if call-identifying
information is not provided until the end of a call, it may be of little value to the LEA.  DoJ/FBI state
that it has requested transmission to the LEA from the carrier within three seconds from the time of
the event because that timeframe is well within the state-of-the-art, and use of a precise time stamp
is important to accurately record events.
    104.             Discussion.  We tentatively conclude that time stamp information fits within the
definition of call-identifying information contained within section 102(2) of CALEA and will
allow such information "to be associated with the communication to which it pertains."  We
propose to include timing information that is reasonably available to the carrier as a technical
requirement necessary to meet the assistance capability requirements of Section 103(a).  We seek
comment on this proposal.  We base this conclusion on the statutory language found in Section
103(a)(2), and on our tentative conclusion that such information falls within the definition of call-
identifying information in section 102(2).  A time stamp permits identification of a given call from
a series of calls made within a short timeframe, and is necessary to allow a LEA to associate call-
identifying information with the communication to which it pertains.  We note, however, that
CALEA does not impose a specific timing requirement on carriers.  Rather, it states that carriers
must "expeditiously" isolate and enable the government to access call-identifying information
"before, during, or immediately after the transmission of a wire or electronic communication (or at
such later time as may be acceptable to the government); and in a manner that allows it to be
associated with the communication to which it pertains."  Therefore, we seek comment on what
is a reasonable amount of time to require the carriers to deliver the time stamped message to the
LEA.  We note that DoJ/FBI have requested delivery within 3 seconds of the beginning of the event
and with an accuracy of 100 milliseconds.  Commenters should address whether this is a reasonable
time frame, and whether there are any technical barriers to implementing such a requirement.
Commenters proposing an alternative time frame should also address technical feasibility and how
such a time frame will satisfy the requirements of the statute.
    105.             In addition, we seek comment, as required by section 107(b), on the factors that we
must consider in establishing a technical requirement.  Are there cost-effective methods of providing
timing information to a LEA?  Can this requirement be accomplished in a manner that minimizes
costs to residential ratepayers?  Further, we request comment on whether this proposal raises issues
regarding the protection of privacy and security of communications which are not authorized to be
intercepted.  Additionally, we solicit comment on whether the inclusion of this technical requirement
within the assistance capability requirements envisioned by Section 103 would positively or
negatively affect the provision of new technologies and services to the public.  Commenters are
asked to provide detailed information regarding the amount of time and conditions that they believe
will be necessary to successfully develop and deploy this technical requirement in
telecommunications systems.
    7.  Surveillance status
    106.             Background.  This capability would require the telecommunications carrier to send
information to the LEA to verify that a wiretap has been established and is still functioning correctly.
This information could include the date, time, and location of the wiretap; identification of the
subscriber whose facilities are under surveillance; and identification of all voice channels that are
connected to the subscriber.  This information would be transmitted to the LEA when the wiretap
is activated, updated or deactivated, as well as periodically (varying from once every hour to once
every 24 hours).
    107.             AT&T argues that CALEA permits telecommunications carriers to meet their
obligations in this regard by whatever means they choose, including human intervention.  TIA
states that the only statutory basis asserted by DoJ/FBI for this capability is that Section 103(a) of
CALEA states that telecommunications carriers "shall ensure" that their equipment is capable of
providing access to communications and call-identifying information.  SBC concurs that CALEA
does not mandate that carriers provide the status of wiretaps to law enforcement in real time.  SBC
also argues that test procedures are available by which law enforcement can perform this function
in concert with carrier personnel.  PrimeCo states a more reasonable means of verifying whether
a wiretap is operational is to perform a periodic trap and trace test of the target's phone number.
Finally, AirTouch states that it has been informed by a vendor that the cost of developing a
surveillance status message would be "exorbitant."
    108.             DoJ/FBI state that, in the context of the analog network, the LEA employs non-
automated means to determine whether the interception device is accessing the correct equipment,
service, or facility, but that digital switching precludes the LEA from performing this function
because it does not allow similar access to the intercept location.  DoJ/FBI argue that without a
surveillance status message, the LEA would not know when the intercept is turned on or off, or if
it has failed; therefore, important evidence could be lost.  Finally, DoJ/FBI object to human
intervention as a possible solution to this requirement because they state that such intervention would
be costly and impractical.
    109.             Discussion.  CALEA requires carriers to ensure that authorized wiretaps can be
performed in an expeditious manner, and we believe that a surveillance status message could assist
carriers and LEAs in determining the status of such wiretaps.  We tentatively conclude, however,
that a surveillance status message does not fall within any of the provisions of Section 103.  We do
not believe that it is call-identifying information as defined by CALEA, since the information such
a feature would provide is unrelated to any particular call.  Nor does a surveillance status message
appear to be required under Section 103(a)(1), since it is not necessary to intercept either wire or
electronic communications carried on a carrier's system.  Nor are we persuaded by the FBI's
interpretation that a surveillance status message is required by CALEA's direction that a carrier
"shall ensure" that its system is capable of meeting the Section 103(a) requirements.  Rather, we note
that the Act expressly states:  "a telecommunications carrier shall ensure that its equipment, facilities,
or services . . . are capable of" intercepting communications and allowing LEA access to call-
identifying information.  We interpret the plain language of the statute to mandate compliance
with the capability requirements of Section 103(a), but not to require that such capability be proven
or verified on a continual basis.
    110.             Thus, we tentatively conclude that the surveillance status punch list item is not an
assistance capability requirement under Section 103.  However, we invite comment as to how,
generally, carriers intend to ensure that wiretaps remain operational.  How, specifically, would
"human intervention" be exercised?  For example, do carriers plan to periodically check the circuit
manually and notify the LEA that the wiretap remains operational?  Further, to the extent
commenters continue to believe that an automated surveillance status message is necessary to
implement the requirements of Section 103, we seek comment on the 107(b) factors that the
Commission must evaluate under CALEA.  In what manner could such a feature be provided? Are
there cost effective methods of providing surveillance status information to a LEA?  Can this
requirement be accomplished in a manner that minimizes costs to residential ratepayers?  Could such
provision of surveillance status messages compromise the privacy and security of communications
not authorized to be intercepted?  Would the provision of such information constrain a carrier's
ability to develop and deploy new technologies and services?  What period of time would be
required to develop and deploy such a feature?  And, to the extent that this information were to fall
under the definition of call-identifying information, is it reasonably available to carriers?
    8.  Continuity check tone
    111.             Background.  This technical requirement would require that, in cases where a LEA
has obtained authority to intercept wire or electronic communications, a C-tone or dial tone be
placed on the call content channel (CCC) received by the LEA from the telecommunications carrier
until a user of the facilities under surveillance initiates or receives a call.  At that point, the tone
would be turned off, indicating to the LEA that the target facilities were in use.  This capability
would permit correlation between the time a call is initiated and the time the connection is
established.  The C-tone would also verify that the connection between the carrier's switch and the
LEA is in working order.
    112.             AirTouch states that there is no basis in CALEA for this capability, and that it
particularly objects to the FBI's demand that CMRS providers be responsible for providing a
continuity tone over the delivery circuits law enforcement agencies will use.  AirTouch asserts that
in most circumstances, the LEA will obtain its delivery circuits from a LEC, not from a CMRS
provider.  In those circumstances, according to AirTouch, the responsibility to ensure that the
delivery circuit is operational should fall on the LEC, not the CMRS provider, which has no control
over either the circuits in question or over the LEC that owns and provides the circuits.  BellSouth
contends that a continuity tone check is technically feasible only when dedicated content channels
are provided and otherwise should not be required.
    113.             DoJ/FBI state that the LEA, in the context of the analog network, can provide itself
with a continuity tone when it conducts interceptions, and that if a similar capability is not provided
in digital networks, the LEA will lose the ability to verify the efficacy, accuracy, and integrity of a
wiretap.  DoJ/FBI argue that Section 103 places an affirmative obligation on the carrier to verify
that its equipment is operational and law enforcement has access to all communications and call-
identifying information within the scope of the authorized surveillance.  DoJ/FBI maintain that the
interim standard does not contain any provisions that give effect to this affirmative statutory
obligation, and state that its proposal would not require any carrier to implement any particular
design or equipment.
    114.             Discussion.  As with the case of surveillance status messages, we believe that
continuity tone could assist the LEA in determining the status of a wiretap, but that this technical
requirement is not necessary to meet the mandates of Section 103(a).  Similar to our reasoning
regarding surveillance status messages, we do not believe that a continuity tone falls within
CALEA's definition of call-identifying information, nor does it appear to be required under Section
103(a)(1), since it is not necessary to intercept either wire or electronic communications carried on
a carrier's system.  Furthermore, as explained above, the plain language of the statute mandates
compliance with the capability requirements of Section 103(a), but does not require that such
capability be proven or verified on a continual basis.  Thus, we tentatively conclude that the
continuity tone punch list item is not an assistance capability requirement under Section 103.
    115.             However, to the extent commenters continue to believe such a technical requirement
is necessary to implement the requirements of Section 103, we seek comment on the 107(b) factors
that the Commission must evaluate under CALEA.  In what manner could such a feature be
provided?  Are there cost effective methods of providing a continuity tone to a LEA?  Can this
requirement be accomplished in a manner that minimizes costs to residential ratepayers?  Could
provision of a continuity tone somehow compromise the privacy and security of communications
not authorized to be intercepted?  For example, could such a tone be detected by the subscriber
whose facilities are under surveillance?  Would the provision of such information constrain a
carrier's ability to develop and deploy new technologies and services?  And finally, what period of
time would be required to develop and deploy such a feature?
    9.  Feature status
    116.             Background.  This technical requirement would require a carrier to notify the LEA
when specific subscription-based calling services are added to or deleted from the facilities under
surveillance, including when the subject modifies capabilities remotely through another phone or
through an operator.  Examples of such services are call waiting, call hold, three-way calling,
conference calling, and call return.  Also, the carrier would be required to notify the LEA if the
telephone number of the facilities under surveillance was changed or service was disconnected.
    117.             US West states that feature status information does not identify any telephone
numbers or digits dialed by subscribers, and is therefore beyond the scope of CALEA.  SBC and
BellSouth agree that feature status messages are not call-identifying information.
    118.             AT&T states that notification to the LEA of a change in feature status, indicating that
a subscriber has added or has dropped services, is provided currently by manual means, i.e., in
response to a subpoena to the carrier.  AT&T argues that nothing in CALEA requires the automation
of such a process, and in fact the complexity and cost involved in doing so likely would be
enormous.  PrimeCo states that the DoJ/FBI claim that feature status information "represents the
most appropriate way to 'meet the assistance capability requirements of Section 103 by cost-effective
methods'" is unsupported by the record.
    119.             TIA states that it is unclear whether DoJ/FBI contemplate the delivery of a feature
status message at the time the subscriber requests the change or at the time the change is actually
executed.  TIA asserts that if carriers were required to provide feature status messages at the time
that the subscriber submits a request, they would have to reconfigure entire customer service
databases and other operating software to provide automatic messaging to law enforcement -- a
capability that is not supported by the present design of these systems.
    120.             DoJ/FBI disagree with the above parties, contending that the provision of an
automated feature status message is essential to enable the LEA to procure the number of delivery
channels or circuits required to ensure that the interception is fully effectuated and the intercepted
material delivered as authorized.  DoJ/FBI argue that whenever a subscriber has the capability of
making multi-party calls, the LEA must have access to all call content channels to ensure that it will
receive all communications and call-identifying information that are subject to a court order or other
lawful authorization.  DoJ/FBI contend that, in modern networks, the subscriber may change calling
services at any time and, thus, the LEA needs to know what features are activated on a subscriber's
service at any time in order to determine how many interception delivery channels and circuits are
necessary to ensure that call content and call-identifying evidence are not lost.  In response to
TIA's comments, DoJ/FBI state that they are proposing that the LEA be notified only when a change
in feature status becomes effective for the subscriber, not when the subscriber requests a change.
    121.             Discussion.  Similar to surveillance status messages and continuity tones, we believe
that feature status messages could be useful to a LEA, but that provision of these messages from a
carrier to a LEA is not required to meet the mandates of Section 103(a).  First, we believe it is clear
that feature status messages do not constitute call-identifying information because they do not
pertain to the actual placement or receipt of individual calls.  Further, feature status messages do not
appear to be required under Section 103(a)(1) because they are not necessary to intercept either wire
or electronic communications carried on a carrier's system.  Rather, they would simply aid a LEA
in determining how much capacity is required to implement and maintain effective electronic
surveillance of a target facility, information that could be useful in assuring that an interception is
fully effectuated and the intercepted material delivered as authorized.  However, as noted by AT&T,
the information that would be provided by feature status messages can be provided by other means,
such as a subpoena to the carrier.  In any event, we reiterate our view that the plain language of the
Act mandates compliance with the assistance capability requirements of Section 103(a), but does not
require carriers to implement any specific quality control capabilities to assist law enforcement.
Thus, we tentatively conclude that the feature status punch list item does not meet the assistance
capability requirements of Section 103.
    122.             We note, however, that at least some of the information that would be provided by
feature status messages -- for example, a change to the phone number of the facilities under
surveillance -- must be provided to the LEA expeditiously if electronic surveillance is to be effective.
We request comment on whether this information can be provided in such an expeditious manner
by other means.  We also request comment on any other aspects or interpretations of a feature status
capability that might cause at least some portion of this feature to meet the assistance capability
requirements of Section 103.  To the extent commenters believe that such a capability is necessary
to implement the requirements of Section 103, we seek a particularized description of such a
capability and comment on the 107(b) factors that the Commission must evaluate under CALEA.
In what manner could such a capability be provided?  Are there cost effective methods of providing
feature status messages to a LEA?  Can this requirement be accomplished in a manner that
minimizes costs to residential ratepayers?  Could provision of feature status messages to a LEA
compromise the privacy and security of communications not authorized to be intercepted?  Would
the provision of such information constrain a carrier's ability to develop and deploy new technologies
and services?  And finally, what period of time would be required to develop and deploy such a
capability?
    10.  Dialed digit extraction
    123.             Background.  This capability would require the telecommunications carrier to provide
to the LEA on the call data channel any digits dialed by the subject after connecting to another
carrier's service (also known as "post-cut-through digits").  One example of such dialing and
signaling would occur when the subject dials an 800 number to access a long distance carrier.  After
connecting to the long distance carrier through the 800 number, the subject then dials the telephone
number that is the ultimate destination of the call.
    124.             TIA maintains that post-cut-through digits are not call-identifying information for the
initial carrier and are not reasonably available to that carrier.  Further, according to TIA, the delivery
of post-cut-through dialing information pursuant to a pen register order would not protect "the
privacy and security of . . . call-identifying information not authorized to be intercepted"  because
post-cut-through digits could include credit card numbers and other substantive information such
as responses to an automatic queuing system, which the LEA is not entitled to without a Title III
authorization.  TIA states that a carrier would have no means of segregating protected information
that is not subject to a pen register order from call-routing digits that are provided.  Finally, TIA
argues that post-cut-through dialing information is already available to law enforcement under the
industry interim standard pursuant to either a Title III content intercept order or a pen register order
or subpoena directed to the long-distance carrier that completes the second stage of the call.
Therefore, TIA concludes that the real agenda of DoJ/FBI is to be able to obtain post cut-through
digits through a pen register order addressed solely to the carrier conducting the initial intercept, in
order simply to avoid the inconvenience and expense associated with the two methods already
available to it.
    125.             Ameritech, AT&T, CDT, EPIC/EFF/ACLU, Primeco, SBC, and USTA voice
concerns similar to TIA's.  CDT states that the legislative history of CALEA makes clear that call-
identifying information does not include dialed numbers after call cut-through.  CDT contends,
however, that the fact that this capability is not mandated by CALEA in no way prevents the LEA
from obtaining post-cut-through digits because those digits are available from the long-distance
carrier that completes the call.
    126.             US West states that, from the perspective of a LEC, once a subject establishes a
connection with an IXC the call has terminated at the IXC's platform, and the LEC has no special
access to or reason to know the second number dialed.  AirTouch states that it is undisputed that
CMRS carriers cannot provide post-cut-through digits without additional developmental work by
vendors and major system modifications by carriers.  Therefore, according to AirTouch, this
capability is not reasonably available to the CMRS industry.  Further, AirTouch maintains that law
enforcement may receive these digits either with a Title III order or a call-identifying order served
on the long-distance carrier that completes the second stage of the call.  Finally, according to
AirTouch, a vendor has advised that the cost of developing the post-cut-through dialing capability
would likely exceed the cost of developing all of the other punch list items combined.
    127.             DoJ/FBI state that dialed digits used to complete a call are "dialing or signaling
information" that identifies the "destination" of the call and falls within CALEA's definition of "call-
identifying information," but that this information is not included in the industry interim standard.
DoJ/FBI contend that this information must be provided because without it the LEA may find it
substantially more difficult, if not impossible, to establish the identity of the party to whom the
subject is speaking due to the fact that the subject may use multiple long distance carriers.  For
example, according to DoJ/FBI, in an illegal drug case the LEA might be unable to link a drug
distributor with the source of the drugs because the LEA would have information only about which
long distance company the distributor was using --not the subsequent post-cut-through digits that
would identify the source.  DoJ/FBI conclude by stating that CALEA does not draw any distinction
between pre-cut-through and post-cut-through dialing or signaling information to process, direct, or
complete a call; and that there is no privacy-based reason under CALEA, the pen register statutes,
or the Constitution to prevent a telecommunications carrier from providing all such information to
the LEA.
    128.             Proposal.  We tentatively conclude that post-cut-through digits representing all
telephone numbers needed to route a call, for example, from the subscriber's telephone through its
LEC, then through IXC and other networks, and ultimately to the intended party are call-identifying
information.  We seek additional comment on whether such call-identifying information is
reasonably available to the carrier originating the call.  Currently, the second set of numbers a
subject dials (the final destination of the call) apparently is transmitted over the CCC (the content
portion of the connection) and not over the CDC (a separate signaling channel).  This method of
transmission raises two primary questions:  (1) Since the post-cut-through digits are provided on the
content portion of the connection, should those numbers be considered content for purposes of
CALEA?; and (2) Technically, how can such post-cut-through digits be extracted from the content
channel and delivered to a LEA by a carrier?  We seek comment on whether originating,
intermediate, or terminating carriers can deliver such call-identifying information by cost-effective
means.  We are also aware of the concerns expressed by industry and privacy advocates that this
dialed digit extraction feature could prove to be inordinately expensive to design, build, and
incorporate into telephone network infrastructures.  The record established thus far does not reflect
any specific cost estimates but does raise the possibility that there may be newly available, less
expensive solutions for this feature, although it is not clear if such solutions have the capability
of separating post-cut-through call-identifying digits from those dialed to perform other functions.
We seek comment on this proposal and, as required by section 107(b), on the other factors that we
must consider in establishing a technical requirement.  Can it be accomplished in a manner that
minimizes costs to residential ratepayers?  Additionally, we solicit comment on whether our proposal
would positively or negatively affect the provision of new technologies and services to the public.
Commenters are asked to provide detailed information regarding the amount of time and conditions
that they believe will be necessary to successfully develop and deploy this technical requirement in
telecommunications systems.  Finally, we request detailed comment on how the privacy and security
of communications that are not authorized to be intercepted can be protected.  In particular, we
request comment on whether and how such call-identifying information can be distinguished from
digits dialed to perform other functions (e.g., to input a credit card number or to access information
services after the call reaches its final destination in the PSTN).
E.      Disposition of J-STD-025
    129.             Parties supporting adoption of J-STD-025 as the final standard state that if
deficiencies are found, the Commission should remand to TIA the task of remedying these
deficiencies.  TIA states that the telecommunications industry drafted the interim standard and is best
qualified to modify it pursuant to any instructions from the Commission.  TIA raises several reasons
as justification for such an approach:  the primary role of the industry in standards-setting under
CALEA, the technical complexity of the matters at issue, the lack of specificity in the DoJ/FBI
petition regarding the bases of the claimed deficiencies of the interim standard, and the fact that the
industry is best positioned to adopt standards which provide for CALEA compliance while
minimizing costs and impact on ratepayers.  TIA also believes that the Commission lacks the
experience and resources to modify the standard on its own.
    130.             AT&T, Nextel Communications, Inc. (Nextel), the Personal Communications Industry
Association (PCIA), SBC, and US West generally concur with TIA.  US West states that if we
decide to modify J-STD-025 in any respect, we should remand the revised standard for
implementation to TR45.2 because that TIA subcommittee has been developing technical
requirements for CALEA for three years.
    131.             DoJ/FBI disagree, stating that a remand to TR45.2 would result in substantial delay
in the implementation of CALEA's assistance capability requirements.  DoJ/FBI assert that the
Commission has the expertise required to identify and prescribe appropriate technical requirements
and standards under section 107(b).
    132.             Proposal.  We believe that the technical requirements proposed herein can be most
efficiently implemented by permitting Subcommittee TR45.2 of the TIA to develop the necessary
specifications in accord with our determinations.  We note that CALEA contemplates that standards
will be developed either "by an industry association or standard-setting organization, or by the
Commission."  We note that both LEAs, carriers and manufacturers are voting members of the
Subcommittee.  While we could undertake this task, we believe that the Subcommittee already has
the experience and resources in place to resolve these issues more quickly.  Both law enforcement
agencies and telecommunications manufacturers and carriers participate on the Subcommittee.  The
Subcommittee worked diligently over a period of several years to craft J-STD-025 and both LEAs
and privacy groups agree with -- or, at least do not raise any specific objections to -- the vast
majority of the features of that standard.  A Commission-based standard-setting activity would
necessarily have to rely heavily on the Subcommittee to modify J-STD-025 in any event, and thus
would very likely take longer than industry-based processes to develop a final safe harbor standard.
Our decision to rely on industry to develop the final technical specifications reflects our commitment
to achieve a CALEA solution as expeditiously as possible.
    133.             Accordingly, we expect TIA to undertake the task of modifying J-STD-025 to be
consistent with the technical requirements we ultimately adopt in this proceeding.  Further, we
expect the TIA to complete any such modifications to J-STD-025 within 180 days of release of the
Report and Order in this proceeding.  While this is an ambitious schedule, we believe it is achievable
because the TIA has been examining CALEA technical standards issues for several years, and the
modifications to J-STD-025 are likely to be relatively limited.  In fact, all of the technical
requirements that we have identified for modification were previously considered in detail by TIA
Subcommittee TR45.2.  We note that any telecommunications carrier conforming with the revised
standard will be considered to have complied with CALEA's safe harbor provisions under section
107(a)(2).  We consider 180 days a sufficient time period for industry to adopt revised technical
standards compliant with CALEA and we believe that industry will be able to comply with the core
requirements of J-STD-025 (excluding the packet-mode feature) by June 30, 2000.  Therefore, we
do not plan to extend the CALEA compliance deadline for the core J-STD-025 requirements beyond
that date, except in the case of individual extenuating circumstances, to which the criteria of section
107(c) of CALEA would apply.  Based on comments received in response to this Further NPRM,
we will set a separate deadline for compliance with the additional technical requirements that we
determine CALEA mandates.  We seek comment on these tentative findings and conclusions.
F.  Other Technologies and Systems
    134.             We note that TIA's J-STD-025 applies only to "wireline, cellular, and broadband PCS
carriers."  CALEA assistance capability requirements for other telecommunications carriers,
including paging, specialized mobile radio (SMR), and satellite services, are not covered by J-STD-
025.  Industry associations or standard-setting organizations that represent such carriers may
establish voluntary standards to achieve compliance with Section 103 by the June 30, 2000 deadline,
and take advantage of the safe harbor provision of section 107(a).  The absence of an industry
standard, however, does not relieve such carriers from the obligations imposed by Section 103.
In the absence of a publicly available standard, a carrier will have to work with its vendors to
develop an individual CALEA solution.  And, as noted above, because compliance with an industry
standard is voluntary, not compulsory, under the Act, a carrier is free to choose a CALEA solution
that is specifically tailored to its particular system and technology.
    135.             We note that, with regard to these other carriers, the Commission has received no
petitions asking us to either set a standard in the absence of one or find that a given standard is
deficient.  Nevertheless, we believe that the certainty we provide in establishing the technical
requirements for wireline, cellular, and broadband PCS carrier CALEA compliance will enable
manufacturers and providers of other telecommunication services to work with the law enforcement
community to develop technical requirements that will meet CALEA's mandates, and that could be
specified in voluntary industry standards that would allow carriers to take advantage of the safe
harbor under section 107(a).
    136.             The comments from industry associations, manufacturers, and telecommunications
carriers not covered by the industry interim standard urge the Commission to resolve the dispute
regarding TIA's J-STD-025 standard and the requirements for compliance with CALEA.
Generally, these commenters support the policy of allowing industry associations to develop their
own standards for CALEA compliance rather than the Commission doing so through regulatory
mandates.  PCIA warns that the Commission should not "substitute its judgment for the reasoned
consensus of an overwhelming majority of industry participants."  Both PCIA and Nextel suggest
that the Commission should instead remand "any final determination on capabilities to TIA's TR45
expert committee."   Moreover, Nextel's reply comments stress that the "Commission must not
preclude other industry associations or standard-setting organizations from promulgating standards
or requirements that are aimed more at specific services or technologies such as paging, digital
dispatch or wireless data to the extent any of these services are covered by CALEA."  Nextel's
comments generally stress the importance of creating specific standards that focus on network design
and the information generated by certain communications methods, and explain that the
Commission's rules should not foreclose the development of such alternative standards.
    137.             These commenters also emphasize that they will work closely with law enforcement
to develop standards, which would function as safe harbors, for those carriers not covered by the
industry interim standard.  For instance, PCIA explains that on May 4, 1998, the CALEA
Subcommittee of its Technical Committee, with input from law enforcement, published Version 1.0
of its CALEA Specification for Traditional Paging.  Pursuant to this standard, PCIA contends that
paging providers offering one-way paging service can comply with Section 103 and be afforded safe
harbor under section 107(a) by providing law enforcement officials, upon presentation of a valid
warrant, with a cloned pager.  PCIA's subcommittee also plans to develop and publish standards
for advanced paging services and ancillary service providers that would establish a CALEA safe
harbor for carriers providing such services.
    138.             Similarly, the American Mobile Telecommunications Association (AMTA) notes that
"its members have in the past and will in the future cooperate with law enforcement personnel in
court-ordered electronic surveillance to the maximum extent possible, whether or not that assistance
is provided pursuant to CALEA requirements."  AMTA also explains that although the FBI has
been silent in response to questions regarding whether the technical parameters of AMTA members'
systems fall under the auspices of CALEA, AMTA has nonetheless undertaken a standards-setting
process for SMR systems.  AMTA states that it fears that unless it develops a SMR standard for
compliance, its members might face enforcement actions and economic penalties under the
provisions of the Act.
    139.             Comments by carriers and associations using technologies and systems not covered
by J-STD-025 generally express concern about the lack of clarification regarding whether their
equipment, facilities and services are subject to the requirements of CALEA.  Although it did not
comment directly on the standards issue, Iridium explains in its petition for extension of CALEA's
compliance deadline that, as a satellite provider, it went to great lengths during the last four years
to analyze the technical implications that CALEA would have for its system, to discuss the systems'
intercept capabilities with the government, and to explore electronic surveillance architecture
solutions particular to its system.  To date, however, law enforcement officials have been
unwilling to "state in writing that Iridium's approach is compliant with CALEA." Iridium further
notes that there is no safe harbor for satellite providers.  Globalstar, another satellite provider, also
in the context of advocating an extension of CALEA's compliance date, comments on the unique
difficulties faced by satellite service providers.  Although Globalstar has received non-common
carrier status, and is therefore not subject to the Act, it explains that the ability of other satellite
carriers to meet CALEA's capability requirements is complicated by the facts that the Attorney
General has not adopted capacity standards for satellite services and that global satellite systems
must receive multiple authorizations from the countries they serve.
    140.             AirTouch maintains that the problems faced by the paging industry illustrate the
difficulties faced by these other carriers in dealing with law enforcement.  As AirTouch explains,
"[t]he paging industry has long accommodated law enforcement's interception needs by furnishing
'clone' pagers" and until recently the FBI has given the paging industry the impression that doing so
satisfies CALEA's requirements.  AirTouch contends the FBI has only recently declared that
"'clone' pager-based interceptions have only limited effectiveness and utility, and fail to fully meet
CALEA's Section 103 requirements."
    141.             We seek comment on what role, if any, the Commission can or should play in
assisting those telecommunications carriers not covered by J-STD-025 to set standards for, or to
achieve compliance with, CALEA's requirements.  Insofar as such carriers argue that CALEA
contemplates multiple or different standards for services such as paging, digital dispatch and wireless
data, we seek comment regarding how our determinations regarding J-STD-025, the FBI's punch
list items, and location and packet-mode information will affect the requirements and standards
already adopted or currently being established by these other industry segments.  For example, can
the Commission's determinations in this rulemaking proceeding be adapted to these other
technologies?  Further, we request comment on if and how we should consider the impact of the
technical requirements we ultimately adopt in this proceeding on these other technologies and
services.
G.      Other Matters
    142.        Section 109(b) of CALEA lays out a detailed regime under which telecommunications
carriers or any other interested person may petition the Commission to determine whether, for
equipment, facilities, or services installed or deployed after January 1, 1995, compliance with the
Section 103 assistance capability requirements is "reasonably achievable."  The Attorney General
must be notified of the petition, and the Commission must make a determination under the
"reasonably achievable" standard within one year after the date such a petition is filed.  When
considering any such petition under the "reasonably achievable" standard, "the Commission shall
determine whether compliance would impose significant difficulty or expense on the carrier or on
the users of the carrier's systems."  Eleven factors are to be considered by the Commission in
determining whether compliance with the assistance capability requirements of Section 103 is
reasonably achievable.
    143.        If the Commission determines that compliance with the assistance capability
requirements of Section 103 is not reasonably achievable, the affected carrier may petition the
Attorney General to pay for the additional, reasonable costs necessary to make compliance
reasonably achievable.  The Attorney General may agree to compensate the affected carrier for the
"additional reasonable costs" of complying with the assistance capability requirements of Section
103.  If the Attorney General does not agree to pay such additional reasonable costs, the affected
carrier would be deemed to be in compliance with CALEA's capability requirements.
    144.        As discussed in paragraph 18, supra, in March 1998 CDT submitted a petition for
rulemaking to the Commission.  In its petition, CDT requests relief from the Commission under
section 109 (as well as section 107) of CALEA.  CDT argues that "compliance with CALEA is not
reasonably achievable with respect to equipment, facilities, and services deployed after January 1,
1995, for the simple reason that carriers have had to make changes to their systems not knowing
what was required to comply with CALEA."  Lack of a CALEA standard, or a dispute about the
CALEA standard, however, is not grounds for a rulemaking under section 109.  Rather, a section 109
determination by the Commission presupposes that the final requirements that must be met by
telecommunications carriers under Section 103 are in place.  Those requirements, however, are still
in dispute.  Accordingly, we are herein dismissing without prejudice that portion of CDT's petition
that relies on section 109.
    145.        Finally, as discussed in paragraphs 16-17, supra, in July 1997 CTIA filed a petition
for rulemaking requesting that the Commission establish a standard to implement the mandates of
Section 103, and in March 1998 DoJ/FBI submitted a motion to dismiss that petition on the grounds
that the December 1997 adoption of J-STD-025 rendered CTIA's petition moot.  CTIA agrees with
DoJ/FBI that its petition is moot, both because the adoption of the industry interim standard
supersedes its request for the Commission to establish a CALEA standard by rule and because its
request in its petition to extend the CALEA compliance deadline has been addressed in this
proceeding.  We agree.  Accordingly, we herein dismiss as moot CTIA's July 16, 1997 Petition
for Rulemaking.
              IV.
             PROCEDURAL INFORMATION
A.  Scope of Proceeding
    146.        With this Further Notice of Proposed Rulemaking, we propose rules to implement
CALEA pursuant to section 229 of the Communications Act of 1934, as amended, 47 U.S.C. section
229.  The proposed action is also authorized by sections 1, 4, 301, 303, and 332 of the
Communications Act of 1934, as amended, and section 107(b) of CALEA, 47 U.S.C. sections 151,
154, 301, 303, 332, and 1006(b).  We encourage interested parties to comment not only on the
specific proposals that are contained in this Further NPRM but also to provide alternatives to our
recommendations and proposed rules that they believe will enable us to implement CALEA
efficiently and effectively.  We further request that commenters include their recommendations and
the text of specific proposed rules in their initial comments, so that other parties will have the
opportunity to comment on those proposals in their reply comments.
B.  Ex Parte
    147.        This is a permit-but-disclose notice and comment rulemaking proceeding. Ex parte
presentations are permitted, except during the Sunshine Agenda period, provided they are disclosed
as provided in the Commission's rules.  See generally 47 C.F.R. sections 1.1202, 1.1203,
1.1206(a)(1), and 1.1206(b).
C.  Initial Regulatory Flexibility Analysis
    148.        As required by the Regulatory Flexibility Act (RFA), the Commission has prepared
an Initial Regulatory Flexibility Analysis (IRFA) of the expected significant economic impact on
small entities by the policies and rules suggested in this Communications Assistance for Law
Enforcement Act, Further Notice of Proposed Rulemaking (CALEA Further NPRM).  Written public
comments are requested on the IRFA.  Comments must be identified as responses to the IRFA and
must be filed by the deadlines for comments on the CALEA Further NPRM provided above on the
first page, in the heading.  The Secretary shall send a copy of the CALEA Further NPRM, including
the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA) in
accordance with paragraph 603(a).
    I.    Need for and Objectives of the Proposed Rules: This Further Notice of Proposed
Rulemaking responds to the legislative mandate contained in the Communications Assistance for
Law Enforcement Act, Pub. L. No. 103-414, 108 Stat. 4279 (1994) (codified as amended in sections
of 18 U.S.C. and 47 U.S.C.).
    II.   Legal Basis:   The proposed action is authorized under the Communications
Assistance for Law Enforcement Act, Pub. L. No. 103-414, 108 Stat. 4279 (1994) (codified as
amended in scattered sections of 18 U.S.C. and 47 U.S.C.). The proposed action is also authorized
by sections 1, 4, 201, 202, 204, 205, 218, 229, 332, 403 and 503 of the Communications Act of
1934, as amended, 47 U.S.C. sections 151, 154, 201-205, 218, 229, 301, 303, 312, 332, 403, 501 and
503.
    III.        Description and Estimate of the Number of Small Entities To Which the
Proposed Rules Will Apply:   The proposals set forth in this proceeding may have a significant
economic impact on a substantial number of small telephone companies identified by the SBA.  We
seek comment on the obligations of a telecommunications carrier for the purpose of complying with
CALEA.
    149.        The RFA generally defines "small entity" as having the same meaning as the term
"small business," "small organization," and "small governmental jurisdiction" and the same meaning
as the term "small business concern" under the Small Business Act, unless the  Commission has
developed one or more definitions that are appropriate to its activities.  Under the Small Business
Act, a "small business concern" is one that:  (1) is independently owned and operated; (2) is not
dominant in its field of operation; and (3) meets any additional criteria established by the Small
Business Administration (SBA).  The SBA has defined a small business for Standard Industrial
Classification (SIC) categories 4812 (Radiotelephone Communications) and 4813 (Telephone
Communications, Except Radiotelephone) to be small entities when they have fewer than 1,500
employees. We first discuss generally the total number of small telephone companies falling
within both of those SIC categories.  Then, we discuss the number of small businesses within the two
subcategories, and attempt to refine further those estimates to correspond with the categories of
telephone companies that are commonly used under our rules.
    150.        Telephone Companies (SIC 483).  Consistent with our prior practice, we shall
continue to exclude small incumbent LECs from the definition of a small entity for the purpose of
this IRFA.  Nevertheless, as mentioned above, we include small incumbent LECs in our IRFA.
Accordingly, our use of the terms "small entities" and "small businesses" does not encompass "small
incumbent LECs."  We use the term "small incumbent LECs" to refer to any incumbent LECs that
arguably might be defined by SBA as "small business concerns."
    151.        Total Number of Telephone Companies Affected.  Many of the decisions and rules
adopted herein may have a significant effect on a substantial number of the small telephone
companies identified by SBA.  The United States Bureau of the Census (the Census Bureau) reports
that, at the end of 1992, there were 3,497 firms engaged in providing telephone services, as defined
therein, for at least one year.  This number contains a variety of different categories of carriers,
including local exchange carriers, interexchange carriers, competitive access providers, cellular
carriers, mobile service carriers, operator service providers, pay telephone operators, PCS providers,
covered SMR providers, and resellers.  Some of these providers -- for example, all SMR providers --
are not covered by this Further NRPM, and it seems certain that some of the 3,497 telephone service
firms may not qualify as small entities or small incumbent LECs because they are not "independently
owned and operated."  For example, a PCS provider that is affiliated with an interexchange carrier
having more than 1,500 employees would not meet the definition of a small business.  It seems
reasonable to conclude, therefore, that fewer than 3,497 telephone service firms are small entity
telephone service firms or small incumbent LECs that may be affected by this Further NPRM.
    152.        Wireline Carriers and Service Providers.  SBA has developed a definition of small
entities for telephone communications companies other than radiotelephone (wireless) companies.
The Census Bureau reports that, there were 2,321 such telephone companies in operation for at least
one year at the end of 1992.  According to SBA's definition, a small business telephone company
other than a radiotelephone company is one employing fewer than 1,500 persons.  All but 26 of
the 2,321 non-radiotelephone companies listed by the Census Bureau were reported to have fewer
than 1,000 employees.  Thus, even if all 26 of those companies had more than 1,500 employees,
there would still be 2,295 non-radiotelephone companies that might qualify as small entities or small
incumbent LECs.  Although it seems certain that some of these carriers are not independently owned
and operated, we are unable at this time to estimate with greater precision the number of wireline
carriers and service providers that would qualify as small business concerns under SBA's definition.
Consequently, we estimate that there are fewer than 2,295 small entity telephone communications
companies other than radiotelephone companies that may be affected by the decisions and rules
recommended for adoption in this NPRM.
    153.        Local Exchange Carriers.  Neither the Commission nor SBA has developed a
definition of small providers of local exchange services (LECs).  The closest applicable definition
under SBA rules is for telephone communications companies other than radiotelephone (wireless)
companies.  The most reliable source of information regarding the number of LECs nationwide of
which we are aware appears to be the data that we collect annually in connection with the
Telecommunications Relay Service (TARS).  According to our most recent data, 1,347 companies
reported that they were engaged in the provision of local  exchange services.  Although it seems
certain that some of these carriers are not independently owned and operated, or have more than
1,500 employees, we are unable at this time to estimate with greater precision the number of LECs
that would qualify as small business concerns under SBA's definition.  Consequently, we estimate
that there are fewer than 1,347 small incumbent LECs that may be affected by the decisions and
rules recommended for adoption in this NPRM.
    154.        Interexchange Carriers.  Neither the Commission nor SBA has developed a definition
of small entities specifically applicable to providers of interexchange services (IXCs).  The closest
applicable definition under SBA rules is for telephone communications companies other than
radiotelephone (wireless) companies.  The most reliable source of information regarding the number
of IXCs nationwide of which we are aware appears to be the data that we collect annually in
connection with TARS.  According to our most recent data, 130 companies reported that they were
engaged in the provision of interexchange services.  Although it seems certain that some of these
carriers are not independently owned and operated, or have more than 1,500 employees, we are
unable at this time to estimate with greater precision the number of IXCs that would qualify as small
business concerns under SBA's definition.  Consequently, we estimate that there are fewer than 130
small entity IXCs that may be affected by the decisions and rules recommended for adoption in this
NPRM.
    155.        Competitive Access Providers.  Neither the Commission nor SBA has developed a
definition of small entities specifically applicable to providers of competitive access services
(CAPs).  The closest applicable definition under SBA rules is for telephone communications
companies other than radiotelephone (wireless) companies.  The most reliable source of information
regarding the number of CAPs nationwide of which we are aware appears to be the data that we
collect annually in connection with the TARS.  According to our most recent data, 57 companies
reported that they were engaged in the provision of  competitive access services.  Although it
seems certain that some of these carriers are not independently owned and operated, or have more
than 1,500 employees, we are unable at this time to estimate with greater precision the number of
CAPs that would qualify as small business concerns under SBA's definition.  Consequently, we
estimate that there are fewer than 57 small entity CAPs that may be affected by the decisions and
rules recommended for adoption in this NPRM.
    156.        Operator Service Providers.  Neither the Commission nor SBA has developed a
definition of small entities specifically applicable to providers of operator services.  The closest
applicable definition under SBA rules is for telephone communications companies other than
radiotelephone (wireless) companies.  The most reliable source of information regarding the number
of operator service providers nationwide of which we are aware appears to be the data that we collect
annually in connection with the TARS.  According to our most recent data, 25 companies reported
that they were engaged in the provision of operator services.  Although it seems certain that some
of these companies are not independently owned and operated, or have more than 1,500 employees,
we are unable at this time to estimate with greater precision the number of operator service providers
that would qualify as small business concerns under SBA's definition.  Consequently, we estimate
that there are fewer than 25 small entity operator service providers that may be affected by the
decisions and rules recommended for adoption in this NPRM.
    157.        Wireless (Radiotelephone) Carriers.  SBA has developed a definition of small entities
for radiotelephone (wireless) companies.  The Census Bureau reports that there were  1,176 such
companies in operation for at least one year at the end of 1992.  According to SBA's definition,
a small business radiotelephone company is one employing fewer than 1,500 persons.  The Census
Bureau also reported that 1,164 of those radiotelephone companies had fewer than 1,000 employees.
Thus, even if all of the remaining 12 companies had more than 1,500 employees, there would still
be 1,164 radiotelephone companies that might qualify as small entities if they are independently
owned are operated.  Although it seems certain that some of these carriers are not independently
owned and operated, we are unable at this time to estimate with greater precision the number of
radiotelephone carriers and service providers that would qualify as small business concerns under
SBA's definition.  Consequently, we estimate that there are fewer than 1,164 small entity
radiotelephone companies that may be affected by the decisions and rules recommended for adoption
in this NPRM.
    158.        Cellular and Mobile Service Carriers:  In an effort to further refine our calculation
of the number of radiotelephone companies affected by the rules adopted herein, we consider the
categories of radiotelephone carriers, Cellular Service Carriers and Mobile Service Carriers.  Neither
the Commission nor the SBA has developed a definition of small entities specifically applicable to
Cellular Service Carriers and to Mobile Service Carriers.  The closest applicable definition under
SBA rules for both services is for telephone companies other than radiotelephone (wireless)
companies.  The most reliable source of information regarding the number of Cellular Service
Carriers and Mobile Service Carriers nationwide of which we are aware appears to be the data that
we collect annually in connection with the TARS.  According to our most recent data, 792
companies reported that they are engaged in the provision of cellular services and 117 companies
reported that they are engaged in the provision of mobile services.  Although it seems certain that
some of these carriers are not independently owned and operated, or have more than 1,500
employees, we are unable at this time to estimate with greater precision the number of Cellular
Service Carriers and Mobile Service Carriers that would qualify as small business concerns under
SBA's definition.  Consequently, we estimate that there are fewer than 792 small entity Cellular
Service Carriers and fewer than 138 small entity Mobile Service Carriers that might be affected by
the actions and rules adopted in this NPRM.
    159.        Broadband PCS Licensees.  The broadband PCS spectrum is divided into six
frequency blocks designated A through F, and the Commission has held auctions for each block.
The Commission defined "small entity" for Blocks C and F as an entity that has average gross
revenues of less than $40 million in the three previous calendar years.  For Block F, an additional
classification for "very small business" was added, and is defined as an entity that, together with its
affiliates, has average gross revenues of not more than $15 million for the preceding three calendar
years.  These regulations defining "small entity" in the context of broadband PCS auctions have
been  approved by SBA.   No small businesses within the SBA-approved definition bid
successfully for licenses in Blocks A and B.  There were 90 winning bidders that qualified as small
entities in the Block C auctions.  A total of 93 small and very small business bidders won
approximately 40% of the 1,479 licenses for Blocks D, E, and F.  However, licenses for Blocks C
through F have not been awarded fully, therefore there are few, if any, small businesses currently
providing PCS services.  Based on this information, we conclude that the number of small broadband
PCS licenses will include the 90 winning C Block bidders and the 93 qualifying bidders in the D,
E, and F blocks, for a total of 183 small PCS providers as defined by the SBA and the
Commissioner's auction rules.
    160.        Resellers.  Neither the Commission nor SBA has developed a definition of small
entities specifically applicable to resellers.  The closest applicable definition under SBA rules is for
all telephone communications companies. The most reliable source of information regarding the
number of resellers nationwide of which we are aware appears to be the data that we collect annually
in connection with the TARS.  According to our most recent data, 260 companies reported that they
were engaged in the resale of telephone services.  Although it seems certain that some of these
carriers are not independently owned and operated, or have more than 1,500 employees, we are
unable at this time to estimate with greater precision the number of resellers that would qualify as
small business concerns under SBA's definition.  Consequently, we estimate that there are fewer than
260 small entity resellers that may be affected by the decisions and rules recommended for adoption
in this NPRM.
    IV.   Description of Projected Reporting, Recordkeeping and Other Compliance
Requirements:
    161.        The rules proposed in the NPRM require telecommunications carriers to establish
policies and procedures governing the conduct of officers and employees who are engaged in
surveillance activity.  Those proposed rules require telecommunications carriers to maintain records
of all interceptions of communications and call identification information.  Further, those proposed
rules require telecommunications carriers classified as Class A companies pursuant to 47 U.S.C. 
32.11 to file individually with the Commission a statement of its processes and procedures used to
comply with the systems security rules promulgated by the Commission.  Telecommunications
carriers classified as Class B companies pursuant to 47 U.S.C.  32.11 may elect to either file a
statement describing their security processes and procedures or to certify that they observe
procedures consistent with the security rules promulgated by the  Commission.
    162.        We tentatively conclude that a substantial number of telecommunications carriers,
who have been subjected to demands from law enforcement personnel to provide lawful
interceptions and call-identifying information for a period time preceding CALEA, already have in
place practices for proper employee conduct and recordkeeping.  We seek comment on this tentative
conclusion.  As a practical matter, telecommunications carriers need these practices to protect
themselves from suit by persons who claim they were the victims of illegal surveillance.  By
providing general guidance regarding the conduct of carrier personnel and the content of records in
this Further NPRM, the Commission permits telecommunications carriers to use their existing
practices to the maximum extent possible.  Thus, we tentatively conclude that the additional cost to
most telecommunications carriers for conforming to the Commission regulations contained in this
Further NPRM, should be minimal.  We seek comment on this tentative conclusion.
    V.    Significant Alternatives to Proposed Rules Which Minimize Significant
Economic Impact on Small Entities and Accomplish Stated Objectives:
    163.        As we noted in Part I of this IRFA, supra, the need for the proposed regulations is
mandated by Federal legislation.  The legislation is specific on the content of employee conduct and
recordkeeping regulations for telecommunications carriers, which removes from Commission
discretion the consideration of alternative employee conduct and recordkeeping regulations for
smaller telecommunications carriers.  The legislation, however, provides for Commission discretion
to formulate compliance reporting requirements for telecommunications carriers that favor smaller
telecommunications carriers, and in the NPRM the Commission exercised that discretion by
proposing rules that allow smaller carriers the option to file a certification of compliance with the
Commission instead of a statement of the policies, processes and procedures they use to comply with
the CALEA regulations.
    VI.   Federal Rules that May Overlap, Duplicate, or Conflict with the Proposed Rules:
    164.        As we noted in Part I of this IRFA, supra, the need for the proposed regulations is
mandated by Federal legislation. The purpose of CALEA was to empower and require the Federal
Communications Commission and the Department of Justice to craft regulations pursuant to specific
statutory instructions.  Because there were no other Federal Rules in existence before CALEA was
enacted, there are no duplicate Federal Rules.  In addition, there are no overlapping, duplicating, or
conflicting Federal Rules to the Federal Rules proposed in this proceeding.
D.  Notice and Comment Provisions
    165.        Pursuant to Sections 1.415 and 1.419 of the Commission's rules, 47 C.F.R.  1.415,
1.419, interested parties may file comments on before December 14, 1998, and reply comments on
or before January 13, 1999.  Comments may be filed using the Commission's Electronic Comment
Filing System (ECFS) or by filing paper copies.  See Electronic Filing of Documents in Rulemaking
Proceedings, 63 Fed. Reg. 24,121 (1998).
    166.        Comments filed through the ECFS can be sent as an electronic file via the Internet to
<http://www.fcc.gov/e-file/ecfs.html>.  Generally, only one copy of an electronic submission must
be filed.  If multiple docket or rulemaking numbers appear in the caption of this proceeding,
however, commenters must transmit one electronic copy of the comments to each docket or
rulemaking number referenced in the caption.  In completing the transmittal screen, commenters
should include their full name, Postal Service mailing address, and the applicable docket or
rulemaking number.  Parties may also submit an electronic comment by Internet e-mail.  To get
filing instructions for e-mail comments, commenters should send an e-mail to ecfs@fcc.gov, and
should include the following words in the body of the message, "get form <your e-mail address."
A sample form and directions will be sent in reply.
    167.        Parties who choose to file by paper must file an original and four copies of all
comments, reply comments and supporting comments.  If participants want each Commissioner to
receive a personal copy of their comments, an original plus nine comments must be filed.  If more
than one docket or rulemaking number appear in the caption of this proceeding, commenters must
submit two additional copies for each additional docket or rulemaking number.  All filings must be
sent to the Commission's Secretary, Magalie Roman Salas, Office of the Secretary, Federal
Communications Commission, The Portals, 445 Twelfth Street, S.W., Room TW-A325,
Washington, D.C. 20554.  Comments and reply comments will be available for public inspection
during regular business hours in the Office of the Secretary.
                     V.     ORDERING CLAUSES
    168.        Accordingly, pursuant to sections 1, 4, 229, 301, 303, and 332 of the Communications
Act of 1934, as amended, and 107(b) of the Communications Assistance for Law Enforcement Act,
47 U.S.C. sections 151, 154, 229, 301, 303, 332, and 1006(b), IT IS ORDERED that this Further
Notice of Proposed Rulemaking is hereby adopted.  IT IS FURTHER ORDERED that the Petition
for Rulemaking filed by the Cellular Telecommunications Industry Association on July 16, 1997 IS
DISMISSED as moot.  IT IS FURTHER ORDERED that the Petition for Rulemaking filed by the
Center for Democracy and Technology IS DISMISSED without prejudice to the extent the petition
seeks relief under section 109 of CALEA, 47 U.S.C. section 1008.  IT IS FURTHER ORDERED
that the Commission SHALL SEND a copy of this Further Notice of Proposed Rulemaking,
including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small
Business Administration.
              FEDERAL COMMUNICATIONS COMMISSION
              Magalie Roman Salas
              Secretary
             VI.     APPENDIX OF COMMENTING PARTIES
Parties That Submitted Comments Regarding Standards Issues in Response to April 20, 1998
Public Notice:
AirTouch Communications, Inc.
AT&T Corporation
American for Tax Reform, Center for Technology Policy of the Free Congress Foundation, and
Citizens for a Sound Economy
Ameritech Operating Companies and Ameritech Mobile Communications, Inc.
BellSouth Corporation, Inc., BellSouth Telecommunications, Inc., BellSouth Cellular Corp.,
BellSouth Personal Communications, Inc., and BellSouth Wireless Data, L,P.
Cellular Telecommunications Industry Association
Center for Democracy and Technology
Department of Justice and Federal Bureau of Investigation
Electronic Privacy Information Center, Electronic Frontier Foundation, and American Civil Liberties
Union
GTE
New York City Police Department
Nextel Communications, Inc.
Personal Communications Industry Association
PrimeCo Personal Communications, L.P.
SBC Communications, Inc. on behalf of its affiliates Southwestern Bell Telephone Company, Pacific
Bell, Nevada Bell, Southwestern Bell Wireless Inc., Southwestern Bell Mobile Systems, Inc., and
Pacific Bell Mobile Services, Inc.
Sprint Spectrum L.P. d/b/a Sprint PCS
Telecommunications Industry Association
United States Telephone Association
US West, Inc.
Parties That Submitted Reply Comments to Comments Regarding Standards Issues:
AirTouch Communications, Inc.
American Mobile Telecommunications Association
AT&T Corporation
Bell Emergis - Intelligent Signalling Technologies
Cellular Telecommunications Industry Association
Center for Democracy and Technology
Denver (CO) Police Department
Department of Justice and Federal Bureau of Investigation
Drug Enforcement Administration
Electronic Privacy Information Center, Electronic Frontier Foundation, and American Civil Liberties
Union
National Telephone Cooperative Association
New Jersey State Police
New York State Police Department
Nextel Communications, Inc.
Ocean County (NJ) Prosecutor's Office
PrimeCo Personal Communications, L.P.
Rural Cellular Association
SBC Communications, Inc.
Telecommunications Industry Association
US West, Inc.
Wisconsin Division of Narcotics Enforcement
  Separate Statement of Commissioner Harold W. Furchtgott-Roth
         In re:  Further Notice of Proposed Rulemaking
       Communications Assistance for Law Enforcement Act
    By this Further Notice of Proposed Rulemaking, the Commission initiates a
proceeding to resolve a dispute among industry, law enforcement, and privacy
interests over what technical requirements are necessary for various carriers to
meet the assistance capability requirements of the Communications Assistance for
Law Enforcement Act, Pub. L. No. 103-414, 108 Stat. 4279 (1994) (codified as
amended in Sections of 18 U.S.C. and 47 U.S.C.) ("CALEA").  I support the
Further NPRM as a good first step to resolving this dispute.  Herein, however, I
express two concerns about our proposed approach and make a strong request for
quantified cost, benefit, and timing information.
    My first concern is general.  While trying to ensure (at considerable expense
to taxpayers, consumers, and industry) that law enforcement agencies are able to
obtain access to communications among people using common wireline, cellular,
and PCS telecommunications services, we may be disregarding inexpensive and
fairly obvious ways for malefactors to thwart our efforts by using other
communications technologies or techniques.  Although I believe that, because
CALEA requires us to do so, we must ensure appropriate access to the common
telecommunications services, I also believe that the practical limits on law
enforcement's reach should temper our willingness to burden consumers and
industry with significant discretionary expenses.
    My more specific concern goes to our tentative conclusion that location
information about mobile wireless units is call-identifying information under
CALEA.  Section 102(2) of CALEA defines call-identifying information as
"dialing or signaling information that identifies the origin, direction, destination,
or termination" of each communication.  47 U.S.C. 1001(2).  Because the words
"origin," "destination," and "termination" usually denote, at least partly, location, I
believe that call-identifying information, by the plain meaning of Section 102,
includes location information about mobile wireless units.
    Some parties, however, say there is good reason to believe Congress
intended a more limited meaning.  See Center for Democracy and Technology,
Petition for Rulemaking Under Sections 107 and 109 of the Communications
Assistance for Law Enforcement Act (March 26, 1998).  Accordingly, although I
support the Commission's tentative conclusion based on what I believe to be the
plain meaning of the law, I would welcome additional comment on whether, and
on what basis, the language of Section 102(2) should be read narrowly.
    Finally, let me make a strong request for parties to submit quantified cost
and timing information.
    In several places, CALEA makes explicit or implicit reference to cost
issues.  In Section 107(b), for example, the Commission is directed to establish
technical requirements or standards that meet assistance capability requirements
by "cost-effective methods," and to "minimize the cost" of compliance on
residential ratepayers.  Id. at 107(b)(1) and (3).  CALEA also directs us to
determine whether compliance with the capability requirements is "reasonably
achievable," id. at 109(b)(1), and, with respect to call-identifying information, to
determine what is "reasonably available," id. at 103(a)(2).
    In order to properly meet our responsibilities under these provisions of
CALEA, I believe the Commission must understand the balance of costs and
benefits -- including implementation timing issues -- of the choices before us.  I
have been disappointed by the level of specificity in the record to date.  It does us
little good to be told that the implementation of some technical feature would or
would not be "difficult" or "expensive" or "take a long time."  Reliance on such
qualitative assessments make it nearly impossible for us to make reasoned
decisions under CALEA.  Thus, I request that all parties, when addressing issues
of cost or what is "reasonably achievable" or "reasonably available," provide
estimates, with as much specificity and quantitative information as possible, the
costs, benefits, and the time necessary for industry to implement the technical
requirements or standards in dispute.
                         * * * * * * *