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 Federal  Communications  Commission  FCC  02-  108 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  matter  of 
 Communications  Assistance  for  Law  Enforcement  Act 
 )  ) 
 )  )  CC  Docket  No.  97-  213 


 ORDER  ON  REMAND 
 Adopted:  April  5,  2002  Released:  April  11,  2002 
 By  the  Commission:  Commissioner  Copps  issuing  a  statement. 
 TABLE  OF  CONTENTS 
 Heading  Paragraph  No. 
 I.  INTRODUCTION  1  II.  BACKGROUND  2 
 III.  DISCUSSION  8  A.  Call-  Identifying  Information  11 
 B.  Cost  Considerations  49  C.  Dialed  Digit  Extraction  66 
 D.  Party  Hold/  Join/  Drop  Messages  94  E.  Subject-  Initiated  Dialing  and  Signaling  Information  104 
 F.  In-  Band  and  Out-  of-  Band  Signaling  Information  114  G.  CALEA  Section  107(  b)(  4)  126 
 H.  Punch  List  Compliance  Date  127  IV.  SUPPLEMENTAL  FINAL  REGULATORY  FLEXIBILITY  ANALYSIS  130 
 V.  ORDERING  CLAUSES  147 
 APPENDIX  A:  FINAL  RULES  APPENDIX  B:  COMMENTING  PARTIES 


 I.  INTRODUCTION 
 1.  In  this  Order  on  Remand,  we  respond  to  a  decision  issued  by  the  United  States  Court  of  Appeals  for  the  District  of  Columbia  Circuit  (  Court)  1  that  vacated  four  Department  of  Justice  (  DoJ)/ 


 Federal  Bureau  of  Investigation  (  FBI)  punch  list  electronic  surveillance  capabilities  mandated  by  the  Third  Report  and  Order  (  Third  R&  O)  in  this  proceeding.  2  We  find  that  all  of  these  capabilities  are 


 1  See  United  States  Telecom.  Association  v.  FCC,  227  F.  3d  450  (D.  C.  Cir.  2000)  (hereinafter  Remand  Decision). 
 The  Remand  Decision  is  available  at  http://  www.  fcc.  gov/  ogc/  documents/  opinions/  2000/  99-  1442.  html. 
 2  Communications  Assistance  for  Law  Enforcement  Act,  Third  Report  and  Order,  CC  Docket  No.  97-  213,  14  FCC 
 Rcd  16794  (1999). 
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 authorized  by  the  Communications  Assistance  for  Law  Enforcement  Act  of  1994  (  CALEA)  3  and  must  be  provided  by  wireline,  cellular,  and  broadband  Personal  Communications  Services  (  PCS) 
 telecommunications  carriers  by  June  30,  2002.  We  also  require  that  two  additional  punch  list  capabilities  that  were  mandated  by  the  Third  R&  O  but  not  reviewed  by  the  Court  be  provided  by  that 
 same  date. 
 II.  BACKGROUND 
 2.  In  the  Third  R&  O,  released  August  31,  1999,  the  Commission  specified  technical  requirements  for  wireline,  cellular,  and  broadband  PCS  carriers  to  comply  with  the  assistance  capability 


 requirements  prescribed  by  CALEA.  We  took  this  action  under  Section  107(  b)  of  CALEA  4  in  response  to  petitions  filed  with  us  that  claimed  that  industry  standards  for  electronic  surveillance  failed  to  satisfy  the 
 four  general  assistance  capability  requirements  in  Section  103  of  CALEA.  5  Section  103(  a)  requires  that  a  telecommunications  carrier  shall  ensure  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  subscribers  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  6  that  is  reasonably 
 available  7  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  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.    229,  1001-  1010,  1021). 
 4  47  U.  S.  C.    1006(  b). 


 5  See  Section  103(  a)(  1)-(  4),  47  U.  S.  C.    1002(  a)(  1)-(  4). 
 6  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  generated  or  received  by  a  subscriber  by  means  of  any  equipment,  facility,  or  service  of  a  telecommunications  carrier.  47  U.  S.  C.    1001(  2). 


 7  The  Act  does  not  define  or  interpret  the  term  reasonably  available. 
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 (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. 
 47  U.  S.  C.  Section  1002(  a). 
 3.  Under  Section  107(  a)(  2)  of  CALEA  8  (the  safe  harbor  provision),  carriers  and  manufacturers  that  comply  with  industry  standards  for  electronic  surveillance  are  deemed  in  compliance 
 with  their  specific  responsibilities  under  Sections  103  and  106  of  CALEA.  9  If  industry  associations  or  standard-  setting  organizations  fail  to  issue  technical  requirements  or  standards  or  if  a  Government  agency 
 or  any  other  person  believes  that  such  requirements  or  standards  are  deficient,  10  the  Commission  is  authorized,  under  Section  107(  b)  of  CALEA,  in  response  to  a  petition  from  any  Government  agency  or 
 person,  to  establish,  by  rule,  technical  requirements  or  standards. 
 4.  In  the  Third  R&  O,  the  Commission  required  that  wireline,  cellular,  and  broadband  PCS  carriers  implement  all  electronic  surveillance  capabilities  of  the  industry  interim  standard,  J-  STD-  025  (  J-Standard) 
 11    including  two  contested  features  of  the  interim  standard,  i.  e.,  a  packet-  mode 
 communications  capability  12  and  a  location  information  requirement  13    and  six  of  nine  additional  capabilities  requested  by  DoJ/  FBI,  known  as  the  punch  list  capabilities.  With  respect  to  the  six  required 


 punch  list  capabilities,  dialed  digit  extraction  would  provide  to  law  enforcement  agencies  (  LEAs)  those  digits  dialed  by  a  subject  after  the  initial  call  setup  is  completed;  party  hold/  join/  drop  would  provide 
 to  LEAs  information  to  identify  the  active  parties  to  a  conference  call;  subject-  initiated  dialing  and  signaling  would  provide  to  LEAs  access  to  all  dialing  and  signaling  information  available  from  the  subject, 


 8  47  U.  S.  C.    1006(  a)(  2). 
 9  47  U.  S.  C.    1002  &  1005. 
 10  47  U.  S.  C.    1006(  b). 
 11  The  interim  standard  was  jointly  published  in  December  1997  by  the  Telecommunications  Industry  Association 
 (TIA)  and  Committee  T1,  sponsored  by  the  Alliance  for  Telecommunications  Industry  Solutions  (ATIS). 
 12  Section  3  of  J-  STD-  025  describes  packet-  mode  as  a  communication  where  individual  packets  or  virtual  circuits 
 of  a  communication  within  a  physical  circuit  are  switched  or  routed  by  the  accessing  telecommunication  system.  Each  packet  may  take  a  different  route  through  the  intervening  network(  s). 


 13  J-  STD-  025  includes  a  parameter  that  would  identify  the  location  of  a  subject's  mobile  terminal  whenever  this 
 information  is  reasonably  available  at  the  Intercept  Access  Point  and  its  delivery  to  law  enforcement  is  legally  authorized.  Location  information  would  be  available  to  the  law  enforcement  agency  irrespective  of  whether  a  call 


 content  channel  or  a  call  data  channel  is  employed.  See  J-  STD-  025  at    6.  4.6  and    5.4.1-  5.4.8,  Tables  1,  5,  6,  and  8. 
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 such  as  the  use  of  flash-  hook  and  other  feature  keys;  in-  band  and  out-  of-  band  signaling  would  provide  to  LEAs  information  about  tones  or  other  network  signals  and  messages  that  a  subjects  service  sends  to  the 
 subject  or  associate,  such  as  notification  that  a  line  is  ringing  or  busy;  subject-  initiated  conference  calls  would  provide  to  LEAs  the  content  of  conference  calls  supported  by  the  subjects  service;  and  timing 
 information  would  provide  to  LEAs  information  necessary  to  correlate  call-  identifying  information  with  call  content.  14 


 5.  The  Commission  required  that  all  uncontested  capabilities  covered  by  the  interim  standard,  as  well  as  the  contested  location  information  requirement,  be  implemented  by  June  30,  2000,  15  and  further 
 required  that  the  contested  packet-  mode  communications  capability  and  the  punch  list  capabilities  be  implemented  by  September  30,  2001.  16  Subsequently,  the  Commission  temporarily  suspended  the  punch 
 list  compliance  deadline.  17 
 6.  The  United  States  Telecom  Association  (  USTA),  Electronic  Privacy  Information  Center  (  EPIC),  and  others  sought  review  by  the  Court  of  the  Third  R&  O.  In  particular,  the  petitioners 


 challenged  the  requirements  that  carriers  make  available  to  LEAs  four  of  the  six  punch  list  capabilities:  dialed  digit  extraction,  party  hold/  join/  drop  messages,  subject-  initiated  dialing  and  signaling  information, 
 and  in-  band  and  out-  of-  band  signaling  information.  Petitioners  argued  that  the  Commission  exceeded  its  statutory  authority,  impermissibly  expanded  the  types  of  call-  identifying  information  that  carriers  must 
 make  accessible  to  LEAs,  and  violated  CALEAs  requirements  that  the  Commission  protect  communication  privacy  and  minimize  the  cost  of  CALEA  implementation. 


 7.  In  its  August  15,  2000  Remand  Decision,  the  Court  affirmed  the  Commissions  findings  in  the  Third  R&  O  in  part  and  vacated  and  remanded  in  part  for  further  proceedings.  In  particular,  the  Court 
 vacated  and  remanded  to  the  Commission  the  Third  R&  Os  decisions  concerning  the  four  punch  list  capabilities.  18  As  a  result  of  the  Remand  Decision,  the  Commission  issued  a  Public  Notice  seeking  to 
 update  the  record  in  the  CALEA  technical  capabilities  proceeding.  19  Comments  on  the  Public  Notice  were  due  by  November  16,  2000  and  reply  comments  were  due  by  December  8,  2000.  20  Thirteen  parties 
 filed  comments  and  nine  parties  filed  reply  comments.  Commenting  parties  are  listed  in  Appendix  B. 
 III.  DISCUSSION 
 8.  Under  Section  107(  a),  21  CALEA  provides  a  mechanism  by  which  the  telecommunications 
 14  For  an  in-  depth  description  of  the  punch  list,  including  the  three  additional  capabilities  proposed  by  DoJ/  FBI, 
 which  the  Commission  denied,  see  Third  R&  O,  supra  n.  2,  at    57-  123.  The  publishers  of  the  J-  Standard  subsequently  issued  a  revised  standard    J-  STD-  025-  A    that  incorporated  the  changes  adopted  by  the  Commission 


 in  its  Third  R&  O.  The  revised  J-  Standard  was  issued  in  May  2000. 
 15  Id.  at    13,  46. 


 16  Id.  at    55,  129. 
 17  See  Communications  Assistance  for  Law  Enforcement  Act,  Order,  CC  Docket  No.  97-  213,  16  FCC  Rcd  17397 
 (2001).  The  Order  also  granted  a  brief  extension  of  the  deadline  for  implementing  a  packet-  mode  communications  capability  until  November  19,  2001.  Id.  at  17397    1. 


 18  227  F.  3d  at  463.  See    9,  infra,  for  a  detailed  discussion  of  the  Remand  Decision. 
 19  See  FCC  Seeks  Comments  to  Update  the  Record  in  the  CALEA  Technical  Capabilities  Proceeding,  Public 
 Notice,  15  FCC  Rcd  20142  (rel.  Oct.  17,  2000).  20 
 Reply  comments  were  originally  due  by  December  1,  2000,  but  that  deadline  was  extended  by  one  week.  See  Order  Extending  Time  for  Reply  Comments,  CC  Docket  No.  97-  213,  15  FCC  Rcd  23776  (rel.  Nov.  29,  2000). 


 21  47  U.  S.  C.    1006(  a). 
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 industry  is  afforded  the  first  opportunity  to  prescribe  the  technical  standards  necessary  to  meet  the  required  surveillance  capabilities.  If  industry  associations  or  standard-  setting  organizations  fail  to  issue 
 technical  requirements  or  standards  or  if  a  Government  agency  or  any  person  believes  that  such  requirements  or  standards  are  deficient,  entities  may  petition  the  Commission  under  Section  107(  b)  22  to 
 establish  technical  requirements  or  standards  that 
 (1)  meet  the  assistance  capability  requirements  of  Section  103  by  cost-  effective  methods; 
 (2)  protect  the  privacy  and  security  of  communications  not  authorized  to  be  intercepted; 
 (3)  minimize  the  cost  of  such  compliance  on  residential  ratepayers; 
 (4)  serve  the  policy  of  the  United  States  to  encourage  the  provision  of  new  technologies  and  services  to  the  public;  and 


 (5)  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. 
 47  U.  S.  C.  Section  1006(  a). 
 9.  The  Court  concluded  that  the  Commissions  decision  to  include  the  four  punch  list  capabilities  under  review  (i.  e.,  dialed  digit  extraction;  party  hold/  join/  drop  messages;  subject-  initiated 


 dialing  and  signaling  information;  and  in-  band  and  out-  of-  band  signaling  information)  reflected  a  lack  of  reasoned  decision  making.  The  Court  held  that  the  Commission  had  not  explained  the  basis  for  its 
 conclusion  that  the  four  punch  list  capabilities  are  required  by  CALEA  as  call-  identifying  information.  Citing  the  structure  of  CALEA,  the  Court  observed  that  Section  107(  b)  limits  the  Commissions  ability  to 
 alter  industry-  developed  technical  standards  to  cases  where  the  Commission  finds  those  standards  deficient.  The  Court  held  the  Commission  had  not  identified  any  deficiencies  in  the  J-  STD-  025s  use  of 
 the  terms  origin,  destination,  direction,  and  termination,  which  the  Court  explained  are  the  key  statutory  terms  in  defining  call  identifying  information,  and  thus  did  not  satisfy  Section  107(  b)  s 
 requirements.  The  Court  also  concluded  that  the  Commissions  decision  suffered  from  two  additional  defects  under  Section  107(  b).  First,  the  Court  said  the  Commission  had  not  explained  how  the  punch  list 
 capabilities  would  satisfy  CALEAs  Section  103  requirements  by  cost-  effective  methods  or  by  minimizing  the  impact  on  residential  ratepayers.  Second,  the  Court  found  that  the  Commission  failed  to 
 explain  how  the  post-  cut-  through  dialed  digits  requirement  would  protect  the  privacy  and  security  of  communications  not  authorized  to  be  intercepted.  23 


 10.  In  the  discussion  that  follows,  we  first  address  CALEAs  key  statutory  terms  call  identifying  information  and  the  underlying  terms  origin,  destination,  termination,  and 
 direction  and  the  criteria  by  which  we  will  evaluate  the  cost  directives  of  Section  107(  b).  We  then  address  each  of  the  four  punch  list  capabilities  for  compliance  with  Section  107(  b),  including  cost  and 
 privacy  considerations. 
 A.  Call-  Identifying  Information 
 11.  Background.  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  generated  or  received  by  a  subscriber  by  means  of  any  equipment,  facility,  or  service  of  a 


 22  47  U.  S.  C.    1006(  b). 
 23  227  F.  3d  at  461-  462. 
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 telecommunications  carrier.  24  The  J-  Standard  further  interprets  the  key  terms  in  this  definition  as  follows: 
 origin  is  the  number  of  the  party  initiating  the  call  (e.  g.,  calling  party);  termination  is  the  number  of  the  party  ultimately  receiving  a  call  (e.  g.,  answering  party);  direction  is  the 
 number  to  which  a  call  is  re-  directed  or  the  number  from  which  it  came,  either  incoming  or  outgoing  (e.  g.,  redirected-  to  party  or  redirected-  from  party);  and  destination  is  the 
 number  of  the  party  to  which  a  call  in  being  made  (e.  g.,  called  party).  25 
 12.  Although  the  J-  Standard  adopts  definitions  that  frame  call-  identifying  information  in  terms  of  telephone  numbers,  the  Commission,  in  the  Third  R&  O,  found  capabilities  required  under  CALEA,  in 


 some  cases,  require  carriers  to  disclose  information  that  is  not  a  telephone  number.  For  example,  the  Commission  found  that  the  provision  of  cell  phone  location  information  is  necessary  to  meet  CALEAs 
 assistance  capability  requirements.  26  Because  the  Commission-  adopted  requirements  encompass  a  broader  interpretation  of  call-  identifying  information  than  that  provided  for  by  the  industry  definition, 
 the  Court  examined  the  meaning  of  call-  identifying  information  in  the  statute  to  determine  whether  the  Commission  properly  adopted  the  challenged  CALEA  requirements. 


 13.  The  Court  concluded  that  the  statute  does  not  unambiguously  answer  whether  call  identifying  information  is  limited  to  telephone  numbers.  27  It  also  found  that  the  statute  is  ambiguous  as 
 to  precisely  what  constitutes  call-  identifying  information  and  thus,  what  the  CALEA  requirements  are.  As  the  Court  stated: 


 Although  we  reject  petitioners  argument  that  Section  102(  2)  is  unambiguously  limited  to  telephone  numbers,  we  think  it  is  equally  clear  that  nothing  points  to  an  unambiguously 
 expressed  intent  of  Congress  to  require  every  one  of  the  challenged  assistance  capabilities.  28 


 14.  Standard  of  Review.  In  cases  where  the  intent  of  Congress  is  not  clear,  an  agency  may  develop  its  interpretation  of  the  statute  within  the  guidelines  set  forth  in  Chevron  v.  National  Resources 
 Defense  Counsel,  Inc.,  467  U.  S.  837  (1984),  and  subsequent  cases.  This  so-  called  Chevron  step  two  analysis  affords  an  agency  considerable  deference  in  its  statutory  interpretation,  but  also  requires  the 
 agency  to  cogently  explain  its  interpretation  in  such  a  way  that  a  reviewing  court  can  conclude  that  the  decision  was  the  result  of  reasoned  decisionmaking.  29 


 15.  In  applying  Chevron  step  two,  the  Court  found  that  the  Commission  had  failed  to  provide  a  sufficient  explanation  in  the  Third  R&  O  for  the  Court  to  determine  whether  the  Commissions 
 interpretation  of  call-  identifying  information  was  in  fact  a  reasonable  conclusion.  30  Thus,  the  Court  did  not  reach  the  question  as  to  whether  CALEA  could  be  interpreted  in  the  manner  the  Commission 


 24  47  U.  S.  C.    1001(  2). 
 25  J-  STD-  025  at  5  (emphasis  in  original). 
 26  Third  R&  O,  supra  n.  2,  at    44. 
 27  227  F.  3d  at  458.  Notably,  if  CALEA  unambiguously  limited  call-  identifying  information  to  telephone  numbers, 
 the  Commission  would  be  bound  to  adopt  standards  that  implement  the  express  will  of  Congress    i.  e.,  capabilities  that  require  the  provision  of  no  more  than  telephone  numbers. 


 28  227  F.  3d  at  459. 
 29  Motor  Vehicles  Mfrs  Assn  v.  State  Farm  Mut.  Auto.  Ins.  Co.,  463  U.  S.  29,  48-  52  (1983);  A.  L.  Pharma,  Inc.  v. 
 Shalala,  62  F.  3d  1484,  1491  (D.  C.  Cir.  1995).  30 
 227  F.  3d  at  460. 
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 proposed,  but  instead  found  that  the  Commission  had  failed  to  adequately  describe  its  decisionmaking  process. 
 16.  Based  on  the  Remand  Decision  and  in  consideration  of  comments  that  we  received  in  response  to  the  October  2000  Public  Notice  seeking  to  update  the  record  in  the  CALEA  technical 
 capabilities  proceeding,  31  we  re-  examine  the  term  call-  identifying  information  as  used  in  CALEA.  Keeping  in  mind  the  standards  discussed  above,  we  will  set  forth  an  interpretation  of  the  term.  We  will 
 then  be  able  to  determine  whether  the  punch  list  items  subject  to  the  Courts  remand  meet  the  statutes  assistance  capability  requirements. 


 17.  Comments.  The  majority  of  commenting  parties  contend  that  the  J-  Standard  definition  reflects  the  intent  of  Congress,  note  that  the  standard  is  the  product  of  the  technical  expertise  of  engineers 
 from  leading  carriers  and  manufacturers,  and  urge  us  to  adopt  an  interpretation  of  call-  identifying  information  that  is  identical  to  that  adopted  in  the  J-  Standard. 


 18.  AT&  T  Corp.  and  AT&  T  Wireless  Group  (  AT&  T)  state  that  the  Commission  should  not  modify  J-  STD-  025s  definition  of  call-  identifying  information  because  the  J-  Standard  defined  the  terms 
 origin,  direction,  destination,  or  termination  in  terms  of  telephone  numbers,  and  because  CALEAs  legislative  history  shows  that  Congress  understood  that  call-  identifying  information  was  limited  to 
 telephone  numbers.  32  AT&  T  also  states  that  because  the  statute  established  a  mechanism  to  incorporate  the  combined  expert  technical  opinions  and  efforts  of  the  worlds  leading  system  engineers  from  a  wide 
 variety  of  carriers  and  manufacturers  into  the  standard-  setting  process,  the  Commission  should  be  hesitant  to  reject  the  J-  Standard.  If  we  find  the  standard  deficient,  AT&  T  argues,  we  risk  ignoring  the  industry 
 know-  how  that  Congress  wanted  to  incorporate  into  the  CALEA  standards.  Other  commenters  similarly  urge  us  to  show  deference  to  the  industry-  established  standard.  33 


 19.  The  Cellular  Telecommunications  and  Internet  Association  (  CTIA)  34  states  that  we  must  begin  our  analysis  by  accepting  the  telecommunications  industrys  definitions  of  origin,  destination, 
 direction  and  termination  from  J-  STD-  025.  35  CTIA  asserts  that  the  four  vacated  punch  list  items  are  not  call-  identifying  information  within  the  meaning  of  CALEA  because  (1)  J-  STD-  025  accounted  for  the 
 provision  of  call-  identifying  information  and  specifically  defined  the  key  concepts  of  origin,  direction,  destination  or  termination  as  they  are  understood  within  the  industry;  (2)  these  definitions  have  not  been 
 challenged  as  deficient;  and  (3)  the  four  vacated  capabilities  are  inconsistent  with  these  definitions.  36 
 20.  Cingular  Wireless  LLC  (  Cingular)  claims  the  legislative  history  of  the  Act    in  particular,  the  House  Report  37    makes  it  clear  that  CALEA  does  not  require,  and  the  Commission  cannot  impose, 


 any  of  the  four  vacated  punch  list  capabilities  because  none  constitute  call-  identifying  information.  38  BellSouth  Corporation  (  BellSouth),  the  Verizon  Telephone  Companies  (  Verizon),  WorldCom,  Inc. 
 (  WorldCom),  and  The  Personal  Communications  Industry  Association  (  PCIA)  make  similar 


 31  See  Public  Notice,  supra  n.  19. 
 32  AT&  T  Comments  at  3-  6. 
 33  See,  e.  g.,  USTA  Comments  at  7;  PCIA  Comments  at  6. 
 34  At  the  time  CTIA  filed  its  comments,  it  was  known  as  the  Cellular  Telecommunications  Industry  Association. 
 35  CTIA  Comments  at  2. 
 36  Id.  at  11-  12. 
 37  See  H.  R.  Rep.  No.  103-  827,  103  rd  Cong.,  2d  Sess  (1994). 
 38  Cingular  Comments  at  1. 
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 assertions.  39  Verizon  contends  that  the  J-  Standard  comports  with  a  reading  of  the  Act  in  the  context  of  both  plain  English  and  standard  industry-  accepted  terms.  40 
 21.  The  Center  for  Democracy  and  Technology  (  CDT)  states  that  we  must  read  CALEA  in  conjunction  with  existing  laws  that  authorize  electronic  surveillance.  CDT  cites  the  pen  register  and 
 trap  and  trace  provisions  of  the  Electronic  Communications  Privacy  Act  of  1986  (  ECPA)  41  as  permitting  LEAs  to  obtain,  respectively,  only  the  telephone  numbers  to  which  a  subject  makes  calls  and 
 the  telephone  numbers  from  which  a  subject  receives  calls.  CDT  notes  that  the  ECPA  requires  a  LEA  to  obtain  a  court  order  before  using  a  pen  register  or  trap  and  trace  device,  but  to  be  granted  such  an  order 
 the  government  needs  only  certify  that  the  information  likely  to  be  obtained  is  relevant  to  an  ongoing  criminal  investigation.  42  CDT  also  notes  that  J-  STD-  025  would  guarantee  LEAs  access  to  both 
 telephone  numbers  and  call  content.  Therefore,  CDT  maintains,  the  core  interests  of  LEAs  are  fully  addressed  by  that  industry  standard.  43 


 22.  A  number  of  commenters  read  the  record  in  this  proceeding  to  support  retention  of  the  J-Standard  without  alteration.  44  The  Telecommunications  Industry  Association  (  TIA)  states  that  absent 
 any  express  evidence  that  [the  J-  Standards]  technical  definitions  are  inconsistent  with  CALEA,  we  should  not  alter  them,  and  suggests  that  such  evidence  does  not  exist.  45  USTA  further  states  that  we  must 
 defer  to  the  experts  in  interpreting  the  language  of  CALEA  and  urges  us  to  refrain  from  altering  the  definitions  adopted  in  the  J-  Standard.  46 


 23.  DoJ/  FBI  disagree  with  industry  commenters  and  contend  that  the  types  of  information  covered  by  the  four  punch  list  capabilities  constitute  call-  identifying  information.  47  They  state  that 
 CALEA  does  not  limit  call-  identifying  information  to  telephone  numbers;  rather,  it  defines  that  term  to  encompass,  but  extend  beyond,  telephone  numbers.  48  As  such,  they  claim,  we  must  find  the  definitions 
 used  by  the  J-  Standard  deficient.  49 
 24.  First,  DoJ/  FBI  point  to  the  Courts  decision  to  support  its  contention  that  call-  identifying  information  represents  more  than  telephone  numbers.  If  Congress  had  intended  the  definition  other 


 commenters  support,  DoJ/  FBI  claim,  it  would  have  said  so.  According  to  DoJ/  FBI,  the  Court  found  that  Congress  had  not  made  such  a  clear  statement.  50  Moreover,  DoJ/  FBI  note  that  the  Court  affirmed  the 
 Commissions  determination  that  wireless  location  information  constitutes  call-  identifying  information.  The  Court  could  not  have  done  so,  they  claim,  unless  call-  identifying  information  encompasses  more 
 than  just  telephone  numbers.  51  DoJ/  FBI  also  dispute  whether  the  legislative  history  of  the  Act  supports 
 39  BellSouth  Comments  at  4-  7;  Verizon  Comments  at  2;  WorldCom  Comments  at  3;  and  PCIA  Comments  at  3-  6. 
 40  Verizon  Comments  at  2. 
 41  See  Electronic  Communications  Privacy  Act  of  1986,  Pub.  L.  No.  99-  508,  100  Stat.  1848  (1986). 
 42  CDT  Comments  at  3-  4  (citing  18  U.  S.  C.    3122-  23). 
 43  Id.  at  3. 
 44  See,  e.  g.,  USTA  Comments  at  3-  4;  WorldCom  Reply  Comments  at  2. 
 45  TIA  Comments  at  3. 
 46  USTA  Comments  at  7. 
 47  DoJ/  FBI  Comments  at  8-  29. 
 48  DoJ/  FBI  Reply  Comments  at  2-  4. 
 49  DoJ/  FBI  Comments  at  7. 
 50  DoJ/  FBI  Reply  Comments  at  3. 
 51  Id. 
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 the  J-  Standard  definition.  They  note  the  ambiguous  nature  of  the  legislative  history  generally,  and  claim  that  the  House  Report  cited  by  other  commenters  draws  its  language  from  an  earlier  version  of  the 
 legislation  that  incorporated  different  terms  than  the  version  that  was  enacted.  52  Even  if  we  were  to  give  full  weight  to  the  House  Report,  DoJ/  FBI  claim,  a  plain  reading  of  the  text  still  does  not  support  the  J-Standard 
 definition.  DoJ/  FBI  note  that  the  legislative  history  of  CALEA  states  that  call-  identifying  information  typically  is  information  that  identifies  the  numbers  dialed  or  otherwise  transmitted  for  the 
 purpose  of  routing  calls  through  a  carriers  network,  and  contends  that  the  word  typically  makes  clear  that  the  discussion  of  call-  identifying  information  was  not  intended  to  be  exhaustive  or  exclusive.  53 
 DoJ/  FBI  also  contend  that  the  CALEA  legislation  added  a  minimization  provision  to  the  pen  register  statute,  54  and  that  provision  makes  clear  that  LEAs  are  entitled  to  record  and  decode  all  electronic  or 
 other  impulses  that  convey  dialing  and  signaling  information  utilized  in  call  processing.  Additionally,  DoJ/  FBI  contend  that  there  is  no  indication  that  Congress  intended  to  frame  the  definition  of  call-identifying 
 information  within  the  context  of  the  pen  register  statute  exclusively. 
 25.  DoJ/  FBI  ask  us  to  adopt  a  rebuttable  presumption  that  call-  identifying  information  includes  information  that  LEAs  traditionally  have  been  able  to  receive  through  authorized  pen  register  and  trap-and- 


 trace  surveillance  of  wireline  telephones,  and  to  give  this  presumption  substantial  weight  wherever  CALEAs  statutory  language  and  legislative  history  neither  compel  nor  foreclose  treating  particular 
 information  as  call-  identifying  information.  DoJ/  FBI  maintain  that,  under  traditional  pen  register/  trap-and-  trace  surveillance,  the  electrical  impulses  transmitted  to  LEAs  include  not  only  the  intercept  subjects 
 dialing  and  signaling  activity,  55  but  also  the  audio  portion  of  the  call,  and  that  the  transmitted  signals  are  processed  by  equipment  that  strips  out  the  audio  signals,  then  decodes  and  records  the  signals  used  in  call 
 processing.  DoJ/  FBI  state  that  this  information  includes  not  only  the  phone  numbers  dialed  by  the  subject,  but  also  all  signals  that  are  sent  from  the  subject  to  the  carrier.  56  Furthermore,  DoJ/  FBI  note  that 
 Section  103(  a)(  2)  of  CALEA  provides  that  carriers  must  be  able  to  deliver  call-  identifying  information  whenever  LEAs  are  entitled  to  obtain  such  information  pursuant  to  a  court  order  or  other  lawful 
 authorization,  regardless  of  whether  the  source  of  legal  authorization  is  the  pen  register  statute  or  some  other  authority.  They  note  that  Section  103(  a)(  2)  provides  that,  with  regard  to  information  acquired 
 solely  pursuant  to  the  authority  for  pen  registers  and  trap  and  trace  devices  .  .  .  .  call-  identifying  information  shall  not  include  any  information  that  may  disclose  the  physical  location  of  the  subscriber 
 .  .  .  .  DoJ/  FBI  maintain  that  if  call-  identifying  information  meant  nothing  more  than  information  available  under  the  pen  register  statute,  then  the  location  information  clause  of  Section  103(  a)(  2)  would 
 be  superfluous.  57  By  viewing  the  CALEA  definitions  in  question  in  conjunction  with  Section  103(  a)(  2),  DoJ/  FBI  set  forth  their  basis  for  an  interpretation  of  call-  identifying  information  that  is  more  expansive 
 than  that  contained  in  the  J-  Standard. 
 26.  DoJ/  FBI  therefore  recommend  that  the  Commission  find  that  call-  identifying  information  includes  all  dialing  and  signaling  information  that  identifies  the  origin,  direction,  destination,  or 


 termination  of  communications.  58  DoJ/  FBI  contend  that  origin,  destination,  direction,  or  termination 
 52  Id. 
 53  Id.  at  2-  4. 
 54  18  U.  S.  C.    3121-  3127. 
 55  The  intercept  subject  is  any  party  using  the  communications  facilities  that  are  being  monitored  by  a  LEA.  As  we 
 stated  in  the  Third  R&  O:  In  a  particular  investigation,  the  intercept  subjects  could  include  the  subscriber,  who  may  or  may  not  be  involved  in  criminal  activity;  a  non-  subscriber  who  is  not  involved  in  criminal  activity;  or  a  non-subscriber 


 who  is  involved  in  criminal  activity.  See  Third  R&  O,  supra  n.  2,  at  n.  11. 
 56  DoJ/  FBI  Comments  at  10-  12. 
 57  DoJ/  FBI  Reply  Comments  at  4-  7. 
 58  DoJ/  FBI  Comments  at  13. 
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 may  be  identified  by  more  than  one  kind  of  dialing  or  signaling  information,  and  that  we  reasonably  may  construe  call-  identifying  information  to  reach  all  such  information.  59  DoJ/  FBI  urge  us  to  adopt  these 
 definitions: 
 an  origin  is  information  that  identifies  the  use  of  a  carriers  equipment,  facilities,  or  services  to  transmit  a  communication  to  another  party;  a  termination  is  dialing  or 


 signaling  information  that  identifies  the  use  of  a  carriers  equipment,  facilities,  or  services  to  receive  a  communication  from  another  party;  direction  is  dialing  or  signaling 
 information  that  identifies  the  use  of  a  carriers  equipment,  facilities,  or  services  to  control  the  path  or  course  of  the  communication  to  another  party;  and  destination  is 
 dialing  or  signaling  information  that  identifies  the  use  of  a  carriers  equipment,  facilities,  or  services  toward  which  the  communication  is  directed.  60 


 DoJ/  FBI  base  these  definitions  on  Section  103(  a)  of  CALEA,  which  requires  a  telecommunications  carrier  to  ensure  that  its  equipment,  facilities,  or  services  that  provide  a  customer  or  subscriber  with  the 
 ability  to  originate,  terminate,  or  direct  communications  can  provide  certain  capability  requirements.  DoJ/  FBI  note  that  Section  103(  a)  does  not  address  the  term  destination.  DoJ/  FBI  support  its  definition 
 by  examining  the  common  usage  of  the  term,  and  putting  that  definition  in  context  with  the  other  terms  they  have  defined  in  reference  to  Section  103(  a).  61  Finally,  DoJ/  FBI  contend  that  a  multi-  party  call  often 
 involves  more  than  one  communication  and  that  call-  identifying  information  pursuant  to  CALEA  includes  all  dialing  and  signaling  information  that  identifies  the  origin,  direction,  destination,  or 
 termination  of  each  communication.  62 
 27.  DoJ/  FBI  also  contend  that,  because  the  Court  held  that  CALEAs  definition  of  call-identifying  information  neither  clearly  excludes  nor  clearly  includes  the  information  covered  by  the  four 


 capabilities,  we  therefore  have  the  discretion  to  reinstate  those  capabilities  under  the  Chevron  step  two  analysis.  63  The  point  of  the  D.  C.  Circuits  decision  was  simply  to  require  the  Commission  to  identify  the 
 shortcomings  of  the  J-  Standards  definition,  DoJ/  FBI  state,  not  to  compel  the  Commission  to  accept  that  definition.  64  DoJ/  FBI  also  disagree  with  those  commenters  who  claim  that  the  Commission  should 
 afford  deference  to  the  industry  definition  due  to  the  structure  of  CALEA.  Once  the  industry  standards  are  challenged,  DoJ/  FBI  claim,  the  statute  places  disputes  about  the  legal  sufficiency  of  industry  standards 
 before  the  Commission.  65  DoJ/  FBI  distinguish  between  the  technical  expertise  necessary  to  implement  legal  requirements  and  the  legal  expertise  in  determining  what  those  requirements  are.  While  the  industry 
 may  possess  technical  expertise,  DoJ/  FBI  assert,  it  has  no  unique  legal  expertise  to  justify  the  deference  some  commenters  claim  the  Commission  should  afford  when  considering  whether  the  J-  Standard  satisfies 
 the  legal  requirements  of  CALEA.  66 
 28.  Discussion.  Several  commenting  parties  continue  to  assert  that  the  plain  meaning  of  the  language  of  the  statute  supports  the  J-  Standards  definitions.  67  We  do  not  see  how  this  can  be  the  case  in 


 59  Id.  at  13-  14. 
 60  Id.  at  14-  16. 
 61  Id.  at  16. 
 62  Id.  at  16-  18. 
 63  Id.  at  10. 
 64  Id.  at  9. 
 65  Id. 
 66  Id. 
 67  See,  e.  g.,  Verizon  Comments  at  2. 
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 light  of  the  Courts  determination  that  the  statute  is  ambiguous.  Nevertheless,  that  does  not  mean  that  we  cannot  conclude,  based  on  the  reasoned  decisionmaking  standard,  that  a  permissible  understanding  of 
 call-  identifying  information  is  one  that  is  framed  in  terms  of  telephone  numbers.  As  described  in  detail  below,  we  reject  that  course.  We  believe  that  commenters  suggestions  for  a  narrow  definition  are 
 unconvincing  and  we  identify  additional  situations  where  call-  identifying  information  necessarily  includes  more  than  telephone  numbers. 


 29.  First,  to  adopt  the  J-  Standards  definitions,  we  would  be  unable  to  give  all  portions  of  CALEA  full  effect.  The  Court  noted  this  fact  in  its  opinion: 
 CALEAs  definition  of  call-  identifying  information,  moreover,  refers  not  just  to  dialing  .  .  .  information,  but  also  to  signaling  information,  leading  us  to  believe  that 
 Congress  may  well  have  intended  the  definition  to  cover  something  more  than  just  the  dialing  .  .  .  information  conveyed  by  telephone  numbers.  Finally,  Section  103(  a)(  2)  of 
 CALEA  provides  that  when  information  is  sought  pursuant  to  a  pen  register  or  trap  and  trace  order,  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).  47  U.  S.  C.    1002(  a)(  2).  As  the  Commission 
 observed,  Congress  would  have  had  no  need  to  add  this  limitation  if  call-  identifying  information  referred  only  to  telephone  numbers.  68 


 We  are  disinclined  to  interpret  a  statute  in  a  manner  that  will  render  portions  of  it  superfluous.  69  We  do  not  find  that  the  arguments  set  forth  by  those  commenters  who  support  the  J-  Standards  definitions 
 provide  such  a  justification. 
 30.  We  also  disagree  that  Congress  clearly  concluded  that  call-  identifying  information  was  limited  to  telephone  numbers,  as  several  commenters  assert.  The  legislative  history  of  CALEA  does  not 


 clearly  state  Congresss  intent  with  respect  to  the  key  terms  at  issue.  The  Court  states,  for  example,  that  the  Report  also  echoes  CALEAs  inherent  ambiguity,  stating  that  call-  identifying  information  is 
 typically  the  electronic  pulses,  audio  tones,  or  signaling  messages  that  identify  the  numbers  dialed  or  otherwise  transmitted  for  the  purpose  of  routing  calls  through  the  telecommunications  carriers 
 network.    70  We  agree  with  DoJ/  FBI  that  the  use  of  the  word  typically  suggests  that  the  House  Reports  discussion  of  call-  identifying  information  was  not  exhaustive.  71  As  described  below,  LEAs 
 currently  receive  certain  information  that  consists  of  more  than  telephone  numbers  under  existing  procedures.  We  think  it  would  be  implausible  to  read  CALEA  as  providing  for  a  more  limited  class  of 
 information  than  that  which  LEAs  already  receive. 
 31.  Nor  do  we  find  a  basis  for  tying  our  interpretation  of  CALEA  exclusively  to  a  prior,  separate  statute.  For  example,  some  commenters  argue  that  we  should  limit  call-  identifying  information  to 


 telephone  numbers  because  such  an  interpretation  mirrors  the  definitions  offered  by  the  ECPA.  However,  in  the  Remand  Decision,  the  Court  stated  that  CALEA  does  not  cross-  reference  or  incorporate  the 
 definitions  of  pen  registers  and  trap  and  trace  devices  in  the  ECPA.  72  Moreover,  these  standards  are 
 68  227  F.  3d  at  458. 
 69  See  Remand  Decision,  227  F.  3d  at  463  (citing  Washington  Market  Co.  v.  Hoffman,  101  U.  S.  (11  Otto)  112,  115-16 
 (1879);  See  also  Pennsylvania  Dept.  of  Pub.  Welfare  v.  Davenport,  495  U.  S.  552,  562  (1990)  (expressing  a  deep  reluctance  to  interpret  a  statutory  provision  so  as  to  render  superfluous  other  provisions  in  the  same 


 enactment). 
 70  227  F.  3d  at  458. 
 71  DoJ/  FBI  Reply  Comments  at  2-  4. 
 72  227  F.  3d  at  459. 
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 evolving.  The  recently  enacted  USA  PATRIOT  Act  extends  LEAs  authority  to  encompass  electronic  surveillance,  and  expands  the  terms  pen  register  and  trap  and  trace  device  to  include  the  concept  of 
 dialing,  routing,  addressing,  or  signaling  information.  73  The  argument  that  we  should  adopt  a  telephone  number-  based  definition  because  of  the  ECPA  makes  little  sense  in  light  of  the  legislative  changes  to  the 
 pen  register  and  trap  and  trace  definitions.  Because  of  these  legislative  changes,  we  dismiss  the  concern  that  the  adoption  of  a  standard  more  comprehensive  than  the  J-  Standard  would  mandate  capabilities  not 
 covered  by  pen  registers  and  trap  and  trace  devices;  that  will  not  be  the  case.  We  also  agree  with  DoJ/  FBI  that  CALEA  is  designed  to  address  electronic  surveillance  capabilities  broadly,  and  reflects,  for  example, 
 Title  III  of  the  Omnibus  Crime  Control  and  Safe  Streets  Act  of  1968,  as  modified  by  the  ECPA,  74  that  is  outside  the  scope  of  the  pen  register  and  trap  and  trace  provisions  in  the  ECPA.  75  This  fact  weighs 
 against  us  placing  too  much  weight  on  the  definitions  in  the  ECPA. 
 32.  We  also  reject  those  comments  that  would  have  us  adopt  the  J-  Standards  definitions  because  they  represent  industry  expertise.  The  language  of  the  statute  does  not  require  us  to  defer  to  the  industry 


 standard  as  part  of  our  evaluation.  Instead,  we  evaluate  the  industry-  adopted  standard  in  the  context  of  the  overall  record  of  this  proceeding.  Moreover,  because  the  statute  requires  the  Commission  to  become 
 involved  in  those  cases  where  the  industry  and  those  who  hold  an  interest  in  the  implementation  of  CALEA  cannot  agree  on  the  requisite  technical  standards,  we  do  not  see  how  we  could  defer  to  industry 
 expertise  without  undermining  the  statutes  operation.  We  likewise  reject  the  suggestion  that  we  should  adopt  no  more  than  the  J-  Standards  definitions  because  only  the  J-  Standard  was  supported  by  the  vast 
 majority  of  commenters.  Rulemaking  by  head  count,  while  arguably  efficient,  is  also  impermissibly  arbitrary  and  capricious.  76 


 33.  We  conclude  that  those  commenters  who  urge  us  to  adopt  only  number  information  such  as  that  which  has  traditionally  been  provided  77  miss  the  point.  To  adopt  a  definition  that  rigidly  applies 
 number  information  undermines  CALEAs  intent.  The  meaning  of  call-  identifying  information  that  we  adopt  should  be  tailored  to  replicate  the  existing  electronic  surveillance  capability  functions,  but  should 
 also  be  expressed  in  sufficiently  broad  terms  so  as  not  to  be  limited  to  a  specific  network  technology.  This  analysis  is  consistent  with  overall  purpose  expressed  for  the  Act:  CALEA  was  intended  to  preserve 
 the  ability  of  law  enforcement  officials  to  conduct  electronic  surveillance  effectively  and  efficiently  in  the  face  of  rapid  advances  in  telecommunications  technology.  78 


 34.  An  example  of  this  approach  can  be  found  in  the  provision  of  antenna  location  information.  The  Court  upheld  the  Commissions  refusal  to  remove  this  capability    which  requires  carriers  to  make 
 available  the  physical  location  of  the  antenna  tower  that  a  mobile  phone  uses  to  connect  at  the  beginning 


 73  See  18  U.  S.  C.    3127  (2001). 
 74  Omnibus  Crime  Control  and  Safe  Streets  Act  of  1968,  Pub.  L.  No.  90-  351,  82  Stat.  212  (1968),  and  ECPA,  supra 
 n.  41  (together  codified  as  amended  in  18  U.  S.  C.    2510-  2522  and  in  other  Sections  of  18  U.  S.  C).  These  statutory  provisions  delineate  the  scope  and  limitations  of  federal  wiretap  surveillance  authority.  A  Title  III  warrant    i.  e.  a 


 warrant  issued  pursuant  to  Title  III  of  the  Omnibus  Crime  Control  and  Safe  Streets  Act  of  1968,  18  U.  S.  C.    2518(  3)    permits  a  LEA  to  receive  call  content  if  there  is  probable  cause  for  belief  that  an  individual  is  committing,  has 
 committed,  or  is  about  to  commit  a  particular  offense.  .  .  .  See  18  U.  S.  C.    2518(  3)(  a).  75 
 DoJ/  FBI  Reply  Comments  at  6.  76 
 National  Resources  Defense  Council  v.  EPA,  822  F.  2d  104,  122  n.  17  (D.  C.  Cir  1987)  (stating  that  an  agency  decision-  making  is  not  a  democratic  process  by  which  the  majority  of  commentators  prevail  by  sheer  weight  of 


 numbers.)  77 
 See,  e.  g.,  BellSouth  Comments  at  5  (emphasis  added).  78 
 140  Cong.  Rec.  H-  10779-  02  (daily  ed.  October  7,  1994)  (statement  of  Rep.  Hyde).  See  also  Third  R&  O,  supra  n.  2,  at    2. 
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 and  end  of  a  call    from  the  J-  Standard.  79  Structurally,  this  capability  has  no  equivalent  in  the  traditional  wireline  architecture.  However,  the  Commission  found  that  antenna  location  information  is  functionally 
 equivalent  to  existing  capabilities.  Because  a  wireline  telephone  number  usually  corresponds  with  a  subscriber  location,  LEAs  have  generally  been  able  to  obtain  location  information.  In  a  wireless 
 environment,  the  location  of  the  cell  sites  to  which  the  mobile  unit  is  connected    which  quite  clearly  is  not  a  telephone  number    serves  as  the  equivalent  location  information. 


 35.  To  frame  a  complete  definition  of  call-  identifying  information,  we  also  look  to  information  that  LEAs  receive  under  existing  capabilities.  DoJ/  FBI  describe  traditional  pen  register  surveillance  in  a 
 standard  wireline  network.  LEAs  typically  receive  signaling  information  generated  by  the  network,  such  as  ringing  tones  and  busy  signals.  If  the  caller  signals  the  network    for  example,  if  a  call  waiting 
 subscriber  uses  a  flash  hook  to  place  one  party  on  hold  and  to  complete  the  circuit  between  the  subscriber  and  the  incoming  caller    then  the  flash  hook  is  reported  to  the  LEA.  80  This  signaling  information  is  not  a 
 traditional  telephone  number. 
 36.  Similarly,  we  note  that  there  are  many  situations  in  which  a  party  inputs  dialing  information  that,  in  itself,  is  not  a  telephone  number.  For  example,  when  a  party  that  uses  a  speed  dial  feature  dials 


 a  special  code,  the  code  itself  is  not  a  telephone  number.  J-  STD-  025  Annex  D,  Table  34  (  Speed  Calling)  describes  such  a  situation  and  anticipates  reporting  both  the  speed  dial  code  and  the  telephone 
 number  it  represents.  A  caller  may  also  use  a  dial-  around  code  to  reach  an  interexchange  carrier  that  is  not  the  partys  presubscribed  interexchange  carrier.  This  carrier  access  code    e.  g.,  10-  10-  321    is  not 
 itself  a  telephone  number  but  nevertheless  contains  basic  network  information. 
 37.  Although  we  understand  call-  identifying  information  to  consist  of  both  dialing  and  signaling  information  that  may  or  may  not  be  described  in  terms  of  telephone  numbers,  we  emphasize  that 


 not  all  dialing  and  signaling  information  is  call-  identifying  information.  For  example,  parties  using  bank-  by-  phone  systems,  automated  prescription  renewal  services,  and  voicemail  systems  often  enter 
 account  numbers,  prescription  numbers  and  passcodes  that  do  not  affect  how  the  network  processes  the  ongoing  call.  To  reach  this  distinction,  we  look  at  the  definition  of  call-  identifying  information: 
 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.  81  While  some  dialing  or  signaling  information  identifies  the  origin,  direction,  destination,  or  termination  of  a  communication,  82  other  dialing  or  signaling  information    such 
 as  a  bank  account  number    clearly  does  not.  Again,  an  analysis  of  traditional  pen  register  surveillance  supports  this  distinction.  During  a  traditional  pen  register  surveillance,  a  LEA  receives  all  signals  that  are 
 sent  from  the  intercept  subject  to  the  carrier,  including  off-  hook  and  on-  hook  signals,  hook  flashes,  ringing  tones  and  busy  signals.  83  Because  special  equipment  is  used  to  identify  and  record  those  audio 
 signals  used  in  call  processing,  the  traditional  model  recognizes  that  there  is  a  distinction  between  audio  signals  that  are  call  content  and  audio  signals  that  are  call-  identifying.  84  This  model  also  supports  a  broad 
 interpretation  of  what  identifies  the  origin,  direction,  destination,  or  termination  of  a  communication.  We  agree  with  DoJ/  FBI  that,  because  these  terms  can  be  identified  in  more  than  one  way  and  by  more 
 than  one  kind  of  information,  we  should  construe  call-  identifying  information  to  include  all  such 


 79  227  F.  3d  at  463. 
 80  See  DoJ/  FBI  Comments  at  12. 
 81  47  U.  S.  C.    1001(  2). 
 82  We  further  define  these  key  terms  below. 
 83  DoJ/  FBI  Comments  at  12. 
 84  Id. 
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 information.  85  Thus,  insofar  as  a  ringing  tone  or  a  busy  signal  provides  information  that  is  descriptive  of  an  origin,  direction,  destination,  or  termination  a  communication,  we  will  find  that  tone  or  signal 
 identifies  such  a  communication  for  purposes  of  CALEA  and  falls  within  CALEAs  definition  of  call-identifying  information. 


 38.  Under  the  J-  Standards  definitions,  call  content  does  not  identify  the  origin,  termination,  direction,  and  destination  of  a  communication,  and  thus  is  not  call  identifying  information  for  purposes 
 of  CALEA.  We  agree,  and  further  note  that  the  J-  Standards  definitions  are  generally  framed  in  terms  of  network  architecture.  This  approach  makes  sense,  and  we  conclude  that  the  J-  Standard  is,  in  general,  the 
 appropriate  starting  point  for  defining  the  key  terms  of  origin,  termination,  direction,  and  destination. 
 39.  We  find  that  the  J-  Standards  definitions  are  too  limited,  however.  As  noted  above,  Section  102(  2)  of  CALEA  defines  call-  identifying  information  as  dialing  or  signaling  information  that  identifies 


 the  origin,  direction,  destination,  or  termination  of  each  call  or  communication.  Thus,  the  origin,  direction,  destination,  or  termination  of  the  call  is  not  itself  call-  identifying  information.  Instead,  the 
 origin,  direction,  destination,  or  termination  is  identified  by  call-  identifying  information,  such  as  the  callers  phone  number.  Accordingly,  the  J-  Standards  definitions  are  deficient  to  the  extent  that  they 
 confuse  origin,  direction,  destination,  and  termination  with  phone  numbers  or  other  information  that  may  be  used  to  identify  the  origin,  direction,  destination,  and  termination  of  each  call  or  communication. 


 40.  Turning  to  the  first  of  the  four  terms,  the  J-  Standard  defines  an  origin  as  the  number  of  the  party  initiating  a  call    i.  e.,  the  calling  party.  For  example,  in  a  simple  two-  way  telephone  call,  the  dialing 
 or  signaling  information  that  identifies  the  origin  of  a  communication  is  the  calling  partys  telephone  line  (which  is  commonly  identified  by  a  telephone  number).  We  note  that  there  are  situations  in  which 
 information  other  than  a  number  is  needed  to  identify  the  party  initiating  a  call.  For  example,  when  a  wireless  phone  is  used  to  initiate  a  call,  that  origin  may  be  identified  by  both  the  number  assigned  to  the 
 wireless  phone  and  the  location  information  of  the  antenna  site  to  which  the  phone  is  connected.  However,  as  discussed  above,  neither  the  phone  number  nor  the  antenna  location  (for  wireless  calls)  is  the 
 origin  of  the  call.  Rather,  the  phone  number  and  the  antenna  location  (for  wireless  calls)  are  information  that  identifies  the  origin.  With  this  in  mind,  we  conclude  that  the  statutory  term  origin  refers  to  the 
 initiator  of  a  call  (e.  g.,  the  calling  party)  and  not  the  phone  number  of  that  initiator. 
 41.  Because  the  origin  pertains  to  a  calling  party,  there  may  be  multiple  points  in  a  telephone  call  scenario  that  give  rise  to  information  that  identifies  the  origin  of  a  communication.  86  An  example  is  the 


 case  where  the  party  under  surveillance  takes  an  incoming  call  and  subsequently  receives  a  network  notification  of  a  second  incoming  call.  Dialing  or  signaling  information  that  describes  this  second  call 
 would  identify  the  origin  of  the  call  because  it  describes  a  calling  party.  Although  there  has  already  been  one  origin  in  this  scenario    the  first  incoming  caller    it  does  not  preclude  information  about  the 
 second  caller  from  identifying  an  origin  under  the  definition  we  adopt.  In  the  situation  where  one  party  (  A)  calls  a  second  party  (  B)  (and,  thus,  information  about  A  describes  an  origin),  B  may  initiate  a 
 three-  way  call  by  dialing  a  third  party  (  C).  In  this  case,  information  about  B  also  describes  an  origin  because  B  was  the  calling  party  that  brought  C  into  the  call. 


 42.  If  an  origin  describes  the  beginning  of  a  call,  then  a  termination  can,  in  the  most  general  sense,  be  thought  of  as  a  stopping  point  in  the  network.  The  J-  Standard  defines  termination  in  terms  of 
 the  party  ultimately  receiving  the  call  (emphasis  added).  We  think  common  practice  as  well  as  the  industrys  own  technical  standards  suggest  a  broader  definition  that  recognizes  that  a  call  can  terminate 
 when  it  reaches  an  identifiable  stopping  point  in  the  network.  J-  STD-  25,  Annex  D,  Table  21  (  Call  Waiting  and  Recall  with  a  Single  Call  Identity),  Step  6  shows  a  diagram  where  the  surveillance  subject 


 85  Id.  at  13-  14. 
 86  We  examine  these  situations  in  greater  depth  below  as  part  of  our  analysis  of  the  punch  list  items. 
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 (  S)  is  connected  to  one  party  (  A),  while  the  other  party  (  B)  is  on  hold.  As  shown  in  the  diagram,  the  communication  path  starting  from  party  A  terminates  at  S.  However,  as  is  also  shown  in  the  diagram, 
 the  communication  path  coming  from  the  held  party  B  terminates  at  the  subjects  switch,  and  not  at  the  subjects  line. 


 43.  This  example  also  supports  the  proposition  that  a  termination  is  not  always  identified  by  a  telephone  number.  Although  the  J-  Standard  illustrates  the  communication  path  from  a  party  on  hold  as 
 ending  in  a  switch,  the  J-  Standards  definition  is  too  limited  to  encompass  this  scenario  because  (1)  a  network  switch  is  not  a  party  in  a  call,  and  (2)  a  network  switch  is  a  point  in  the  network  with  no  directory 
 telephone  number.  Accordingly,  we  also  find  the  J-  Standards  definitions  are  deficient  to  the  extent  that  they  specify  a  party  in  a  communication.  The  origin,  direction,  destination,  or  termination  of  a  call  can 
 be  either  a  party  or  a  place  in  the  network.  The  network  switch  is  the  most  obvious  example  of  the  latter. 
 44.  Accordingly,  we  conclude  that  a  termination  is  a  party  or  place  at  the  end  of  a  communication  path.  Moreover,  there  can  be  multiple  terminations  within  a  single  call.  J-  STD-  025, 


 Annex  D,  Table  21,  Step  6  (  Call  Waiting  and  Recall  with  a  Single  Call  Identity)  shows  a  diagram  where  the  surveillance  subject  (  S)  is  connected  to  one  party  (  A),  while  the  other  party  (  B)  is  on 
 hold.  As  shown  in  the  diagram,  the  connection  starting  from  A  terminates  at  S.  However,  the  subject  (  S)  can  toggle  between  the  two  other  parties,  resulting  in  a  situation  where  A  is  on  hold,  and  B  is 
 connected  to  S.  This  situation  is  illustrated  in  Step  5  of  the  same  table.  At  that  step,  the  communication  from  A  terminates  at  Ss  switch,  and  the  communication  from  B  terminates  at  S.  This  concept  of  multiple 
 terminations  is  consistent  with  the  definition  we  adopt  because  there  are  multiple  points  in  a  call  at  which  there  is  information  that  identifies  the  called  party.  Changes  made  during  the  call    such  as  a  called  party 
 being  put  on  hold    can  generate  information  that  identifies  a  new  or  changed  termination. 
 45.  The  J-  Standard  identifies  the  destination  as  the  number  of  the  called  party.  In  order  to  better  understand  what  a  destination  is,  we  think  it  is  helpful  to  review  common  and  technical 


 definitions  of  these  terms.  Websters  Dictionary  defines  destination  as  the  place  toward  which  you  are  going,  87  and  Newtons  Telecommunications  Dictionary  defines  destination  as  an  address  or  field  that 
 indicates  for  whom  a  message  is  intended.  88  These  definitions,  and  the  J-  Standard,  all  generally  describe  a  place  or  a  party  that  a  calling  party  is  trying  to  reach.  In  the  CALEA  context,  then,  a  destination  can 
 be  understood  to  be  a  party  or  place  to  which  a  call  is  being  made.  89 
 46.  Under  the  J-  Standard,  the  direction  is  defined  as  the  number  to  which  a  call  is  re-  directed  or  the  number  from  which  it  came,  either  incoming  or  outgoing  (e.  g.,  redirected-  to  party  or  redirected-  from 


 party).  Again,  we  reject  the  contention  that  this  information  is  exclusively  a  telephone  number.  However,  we  agree  with  the  general  characterization  of  direction  as  a  description  of  navigation  within  a 
 network.  We  find  that  the  direction  is,  broadly  speaking,  information  that  identifies  the  path  of  communication. 


 87  Websters  New  World  Dictionary,  College  ed.  (1962.)  at  398. 
 88  Newtons  Telecom  Dictionary,  5  th  ed.,  at  273. 
 89  We  distinguish  a  destination  from  a  termination.  Websters  defines  terminate  as  to  end,  conclude,  or 
 stop  (1504)  and  Newtons  defines  a  terminal  as  the  point  at  which  a  telephone  line  ends  or  is  connected  to  other  circuits  in  a  network  (890).  In  a  simple  two-  party  call  (  A  calls  B),  the  called  party  (  B)  is  both  a 


 termination  and  a  destination.  However,  in  more  complex  scenarios,  the  termination(  s)  and  destination(  s)  will  not  always  be  identical.  Where  a  calling  party  dials  the  access  number  of  an  interexchange  carrier  and  connects  through 
 that  interexchange  carrier  to  reach  a  called  party  (  A  to  X  to  B,  where  X  is  the  interexchange  carrier),  there  are  two  terminations    first  at  X  (a  call-  receiving  party)  and  then  again  B  (the  called  party).  If  B  then  calls  a  third 
 party  (  C)  to  establish  a  three-  way  call,  then  C  is  also  a  termination.  If  A  tries  to  dial  B  but  the  network  is  unable  to  make  a  connection,  B  would  be  the  destination  but,  because  the  network  never  connects  to  that  point,  there  is  no 
 termination  at  B. 
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 47.  For  these  reasons,  we  find  it  proper  to  view  call-  identifying  information  as  consisting  of  dialing  or  signaling  information  that  is  not  limited  to  telephone  numbers.  90  However,  this  dialing  or 
 signaling  information  must  identify  the  origin,  termination,  direction,  or  destination  of  each  communication.  We  define  these  terms  as  follows: 


 origin  is  a  party  initiating  a  call  (e.  g.,  a  calling  party),  or  a  place  from  which  a  call  is  initiated;  destination  is  a  party  or  place  to  which  a  call  is  being  made  (e.  g.,  the  called 
 party);  direction  is  a  party  or  place  to  which  a  call  is  re-  directed  or  the  party  or  place  from  which  it  came,  either  incoming  or  outgoing  (e.  g.,  a  redirected-  to  party  or  redirected-from 
 party);  and  termination  is  a  party  or  place  at  the  end  of  a  communication  path  (e.  g.,  the  called  or  call-  receiving  party,  or  the  switch  of  a  party  that  has  placed  another  party  on 
 hold). 
 These  changes  distinguish  between  origin,  destination,  direction,  and  termination,  and  the  information  that  identifies  them;  permit  multiple  origins,  destinations,  directions,  and  terminations  in  a  call;  and 


 provide  for  terminations  inside  a  network  switch  or  at  another  point  within  a  network. 
 48.  We  think  this  approach  defines  call-  identifying  information  in  a  manner  that  can  be  converted  into  actual  network  capabilities,  unlike  the  definition  suggested  by  DoJ/  FBI.  DoJ/  FBI  look  to  Section  103 


 of  CALEA,  which  requires  a  carrier  to  ensure  that  its  equipment,  facilities,  or  services  that  provide  a  customer  or  subscriber  with  the  ability  to  originate,  terminate,  or  direct  communications  meet  the 
 specified  assistance  capability  requirements,  and  adopt  a  parallel  definition  for  the  terms  termination,  origin,  and  direction  under  the  definition  of  call  identifying  information.  However,  it  is  not  clear  to 
 us  how  Section  103  describes  the  key  terms.  At  most,  Section  103  indicates  that  Congress  concluded  that  customers  who  originated,  terminated,  and  directed  calls  might,  during  this  process,  use  a  carriers 
 equipment,  facilities  and  services,  and  that  the  carriers  equipment,  facilities,  and  services  must  be  capable  of  isolating  and  providing  certain  information  about  those  activities.  It  does  not  tell  us  what 
 Congress  thought  a  termination,  origin,  and  direction  is,  nor  does  it  lead  to  the  conclusion  that  a  termination,  origin,  or  direction  always  uses  a  carriers  equipment,  facilities,  and  services  in  a 
 manner  that  generates  call  identifying  information.  By  contrast,  the  definitions  we  adopt  remedy  the  J-Standards  deficiencies  insofar  that  they  are  not  limited  to  telephone  numbers  and  are  framed  to 
 accommodate  CALEAs  intent  to  preserve  the  ability  of  law  enforcement  officials  to  conduct  electronic  surveillance  effectively  and  efficiently  in  the  face  of  rapid  advances  in  telecommunications  technology. 
 Nevertheless,  our  interpretation  draws  heavily  from  the  industry-  established  standards  and  is  in  many  cases  supported  by  the  industrys  own  technical  models. 


 B.  Cost  Considerations 
 49.  We  also  reconsider  in  depth  cost  considerations  related  to  the  punch  list  items.  Under  Sections  107(  b)(  1)  and  107(  b)(  3)  of  CALEA,  if  the  Commission  finds  that  industry-  established  technical 


 standards  are  deficient,  it  may  establish  standards  that  meet  the  assistance  capability  requirements  of  Section  103  by  cost-  effective  methods  91  and  minimize  the  cost  of  such  compliance  on  residential 
 ratepayers.  92  In  the  Remand  Decision,  the  Court  stated  that  the  Third  R&  O  made  no  attempt  to  compare 
 90  We  conclude  that  this  identifying  information  could  include,  for  example,  information  that  identifies  lines, 
 antenna  towers,  or  other  telecommunication  service  provider  (  TSP)  facility  or  facilities.  In  the  wireless  location  information  requirement,  which  the  Court  upheld,  a  provider  will  have  to  identify  a  particular  cell  tower.  Where  a 


 call  terminates  at  the  TSP  switch  that  serves  the  subject,  we  suspect  that  the  provider  and  LEA  may  find  it  more  convenient  to  describe  the  action  instead  of  providing  an  identification  number  for  the  terminating  switch    even 
 though  both  would  be  identifying  information.  91 
 47  U.  S.  C.    1006(  b)(  1)  (emphasis  added).  92 
 47  U.  S.  C.    1006(  b)(  3). 
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 the  cost  of  implementing  the  punch  list  capabilities  with  the  cost  of  obtaining  the  same  information  through  alternative  means,  nor  did  it  explain  how  it  measured  cost-  effectiveness.  Although  it  mentioned 
 residential  ratepayers,  it  never  explained  what  impact  its  Order  would  have  on  residential  rates.  93  The  Court  could  not  find  a  rational  connection  between  the  facts  found  and  the  choice  made    and  thus 
 concluded  that  the  Commissions  treatment  of  these  cost  factors  represented  an  arbitrary  and  capricious  action.  94  For  this  reason,  we  generally  address  cost  considerations  in  this  Section.  We  will  then  apply 
 that  general  framework  in  portions  of  the  next  four  Sections,  where  we  will  evaluate  each  of  the  four  vacated  punch  list  capabilities. 


 50.  Comments.  In  the  October  2000  Public  Notice,  the  Commission  sought  comment  on  the  definition  of  the  term  cost-  effective  methods,  how  cost  effectiveness  should  be  measured  in  relation  to 
 the  punch  list  capabilities,  and  how  requiring  the  capabilities  would  affect  residential  ratepayers.  95  It  also  asked  for  alternative  methods  for  providing  the  four  capabilities,  and  for  the  implementing  cost  and  effect 
 on  residential  ratepayers  of  each  alternative  method.  96  Many  commenters  contend  that  the  J-  Standard  is  not  deficient  and,  insofar  that  it  will  be  less  expensive  to  implement  than  the  punch  list  capabilities, 
 retention  of  the  J-  Standard  represents  the  most  cost-  effective  option  for  the  Commission.  97  Others  suggest  that  the  Commission  must  consider  whether  there  are  less  costly  alternatives  to  providing  the 
 same  functionality  as  the  punch  list  capabilities.  98  In  general,  these  commenters  suggest  an  approach  that  measures  cost-  effectiveness  by  identifying  two  or  more  ways  of  meeting  CALEAs  requirements  and  then 
 determining  which  is  the  least  expensive  to  implement. 
 51.  WorldCom  says  even  if  such  a  comparison  is  not  available,  we  should  adopt  a  definition  that  still  gives  cost-  effective  meaning.  There  is  a  point  where  a  particular  capability  is  simply  too  costly, 


 it  asserts,  adding  that  it  believes  that  CALEA  implementation  cannot  be  an  open-  ended  process  in  which  cost  is  not  a  consideration.  99  Other  commenters  contend  that  the  projected  cost  of  CALEA 
 implementation,  by  itself,  makes  it  impossible  for  us  to  implement  the  punch  list  capabilities  in  a  cost-effective  manner.  100  For  example,  USTA  and  others  acknowledge  that  CALEA  implementation  costs 
 have  been  reduced  by  the  FBIs  flexible  deployment  program,  101  but  USTA  argues  that  not  all  costs  have  been  defrayed  and  that  there  is  no  assurance  that  the  punch  list  capabilities  can  be  deployed  in  a 
 cost-  effective  manner.  USTA  also  maintains  that  the  costs  of  CALEA  far  exceed  the  $500  million  appropriated  by  Congress  to  reimburse  carriers  for  CALEA  compliance,  and  that  these  costs  are  solely  for 
 the  benefit  of  LEAs  and  would  otherwise  not  be  incurred  by  carriers.  102  Both  USTA  and  BellSouth  also 


 93  227  F.  3d  at  461. 
 94  Id.  (citing  Motor  Vehicle  Mfrs.,  463  U.  S.  at  43). 
 95  See  Public  Notice,  supra  n.  19. 
 96  Id. 
 97  See,  e.  g.,  USTA  Comments  at  13;  BellSouth  Reply  Comments  at  13. 
 98  CTIA  Comments  at  25  (alternative  costs  should  have  been  identified  and  considered);  Rural  Cellular  Association 
 (  RCA)  Comments  at  6  (Commission  failed  to  evaluate  whether  the  punch  list  items  were  the  most  cost-  effective  way  of  meeting  the  CALEA  requirements);  AT&  T  Reply  Comments  at  2  (Commission  should  give  serious 


 consideration  to  the  proposed  alternative  methods  for  law  enforcement  to  obtain  the  same  information  at  a  substantially  lower  cost). 
 99  WorldCom  Reply  Comments  at  5. 
 100  See,  e.  g.,  AT&  T  Comments  at  4  (asserting  that  the  provision  of  the  punch  list  capabilities  is  not  cost-  effective 
 because  of  costs  that  are  excessive  and  unreasonably  burdensome).  101 
 USTA  Comments  at  12-  13;  see  also  BellSouth  Comments  at  22;  NTCA  Reply  comments  at  4.  102 
 USTA  Comments  at  13. 
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 suggest  that  we  undertake  a  cost-  benefit  analysis.  103  BellSouth  also  claims  that  cost-  minimization  is  a  reasonable  means  of  defining  cost-  effectiveness.  104 
 52.  CTIA,  which  claims  that  the  four  vacated  capabilities  do  not  meet  CALEAs  Section  107(  b)  requirements,  105  acknowledges  that  DoJ/  FBI  have  entered  into  buyout  agreements  with  several 
 manufacturers,  but  states  that  it  remains  concerned  that  an  uneven  playing  field  will  be  created  if  carriers  are  not  covered  equally  by  these  agreements.  CTIA  recommends  that  the  Commission  determine  which 
 costs  the  buyout  actually  reimburses  and  which  costs  are  left  to  carriers  to  pay.  106  CTIA  and  the  National  Telephone  Cooperative  Association  (  NTCA)  also  maintain  that  Section  107  requires  that  the 
 Commission  evaluate  cost-  effectiveness  across  the  industry,  not  on  a  carrier-  by-  carrier  basis.  107  Additionally,  CTIA  expresses  concern  that  the  DoJ/  FBI  buyout  initiative  may  cause  some  carriers  to 
 accept  and  adopt  all  punch  list  capabilities  before  the  lawfulness  of  those  capabilities  has  been  determined.  108 


 53.  Commenters  also  cite  the  cost  of  implementing  the  punch  list  capabilities,  and  claim  that  the  adoption  of  those  capabilities  will  not  minimize  the  cost  of  compliance  on  residential  ratepayers.  USTA 
 argues  that  the  cost  of  the  J-  Standard  capabilities,  the  punch  list  capabilities,  and  CALEA  capacity  requirements  far  exceed  the  $500  million  appropriated  by  Congress  to  reimburse  carriers  for  CALEA 
 compliance.  109  BellSouth  claims  that  it  will  incur  costs  for  the  four  vacated  punch  list  capabilities,  plus  the  two  uncontested  punch  list  capabilities,  of  between  $193-  286  million,  depending  upon  whether  the 
 FBI  buyout  has  been  consummated  with  all  vendors  and  whether  carriers  are  allowed  to  install  CALEA-compliant  equipment  and  software  during  regularly  scheduled  upgrades.  110  These  costs,  commenters 
 claim,  make  it  impossible  to  minimize  the  cost  on  residential  ratepayers,  111  and  will  have  a  particularly  disproportionate  hardship  on  residential  ratepayers  subscribed  to  small  telephone  companies  operating  in 
 rural  areas  with  limited  resources.  112 
 54.  DoJ/  FBI  contend  that  the  aggregate  costs  of  implementing  all  CALEA  capabilities  will  be  much  lower  than  industry  estimates  both  because  most  costs  are  being  borne  by  the  government  and 


 because  carriers  are  generally  permitted  to  deploy  CALEA  solutions  as  part  of  their  normal  software  upgrade  cycles.  113  DoJ/  FBI  note  that,  under  CALEA,  certain  carrier  costs  are  reimbursable  and  further 
 note  that  the  FBI  has  reached  cooperative  agreements  with  five  manufacturers  that  greatly  reduce  carrier 
 103  USTA  Reply  Comments  at  2;  BellSouth  Comments  at  21  (stating  that  [  m]  andating  implementation  of  the  four 
 punch  list  capabilities  will  add  significantly  and  unnecessarily  to  the  total  costs  of  CALEA  compliance,  without  any  countervailing  benefits.) 


 104  BellSouth  Comments  at  22.  Because  BellSouth  claims  that  the  J-  Standard  is  not  deficient,  it  concludes  that 
 retention  of  the  J-  Standard  is  the  best  method  to  achieve  cost-  minimization  and,  thus,  to  adopt  a  standard  that  is  cost-  effective. 


 105  CTIA  Comments  at  18. 
 106  Id.  at  22-  24. 


 107  Id.  at  23  and  NTCA  Reply  Comments  at  4. 
 108  CTIA  Comments  at  24. 
 109  USTA  Comments  at  13. 
 110  BellSouth  Comments  at  21. 
 111  See,  e.  g.,  PCIA  Comments  at  9  (describing  the  effect  of  requiring  post  cut-  through  dialed  digits). 
 112  USTA  Comments  at  12-  13;  RCA  Comments  at  7. 
 113  DoJ/  FBI  Comments  at  31,  41-  43. 
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 costs.  DoJ/  FBI  contend  that,  under  these  buyout  agreements,  each  manufacturer  provides  a  CALEA-compliant  software  solution  for  J-  STD-  025  and  the  six  punch  list  items  required  by  the  Third  R&  O,  and 
 that  carriers  software  costs  are  fully  covered.  DoJ/  FBI  maintain  that  the  switch  platforms  covered  by  these  buyout  agreements  account  for  approximately  90%  of  the  wireline  and  wireless  switches  currently 
 in  use  in  the  United  States.  114  Finally,  DoJ/  FBI  argue  that,  with  minor  exceptions,  CALEA  hardware  modifications  are  not  attributable  to  the  four  contested  punch  list  capabilities.  115  DoJ/  FBI  further  contend 
 that  the  incremental  costs  associated  with  implementing  the  four  punch  list  capabilities  are  only  a  small  portion  of  aggregate  costs  and  that  many  costs  of  modifying  the  J-  Standard  will  be  the  same  regardless  of 
 whether  the  four  capabilities  are  added.  116 
 55.  More  fundamentally,  DoJ/  FBI  argue  that  the  cost  criteria  of  this  section  do  not  call  on  the  Commission  to  decide  whether  the  costs  of  particular  assistance  capabilities  are  worth  incurring;  rather, 


 these  criteria  are  directed  instead  at  ensuring  that  the  Commission  does  not  subject  carriers  and  residential  ratepayers  to  unnecessary  expense  by  choosing  a  costly  means  of  meeting  Section  103s  requirements 
 when  an  equally  effective  but  less  expensive  alternative  is  available.  DoJ/  FBI  contend  that  because  no  commenter  has  identified  any  alternative  means  that  cure  the  deficiencies  of  J-  STD-  025  by  less  expensive 
 means,  117  that  failure  to  identify  alternatives  disposes  of  any  cost-  based  objections  under  Section  107(  b).  118  Therefore,  DoJ/  FBI  conclude,  the  Commission  can  adopt  the  four  punch  list  capabilities  and 
 comply  with  the  cost  criteria  outlined  in  Section  107(  b)  of  CALEA. 
 56.  Finally,  DoJ/  FBI  refute  BellSouths  asserted  CALEA  costs  of  $193-  286  million  to  implement  all  six  punch  list  capabilities  as  unsubstantiated  and  not  credible.  DoJ/  FBI  contend  that  BellSouth  will 


 pay  nothing  for  the  software  required  to  implement  CALEA  on  most  switching  platforms;  BellSouth  is  participating  in  the  FBIs  flexible  deployment  program,  which  will  permit  it  to  adhere  to  its  normal 
 software  upgrade  cycle;  and  BellSouth  is  eligible  for  federal  reimbursement  for  costs  attributable  to  CALEAs  capacity  requirements.  119  DoJ/  FBI  assert  that  BellSouth  offers  no  explanation  for  its  costs  in 
 light  of  the  cost-  shifting  and  cost-  minimizing  plans  in  which  it  will  participate,  and  note  that  no  other  carrier  has  advanced  similar  cost  claims.  120  DoJ/  FBI  also  assert  that  the  relevant  costs  are  those 
 specifically  attributable  to  the  four  contested  punch  list  capabilities,  not  the  sum  total  of  all  possible  CALEA  implementation  costs.  Finally,  DoJ/  FBI  assert  that  CTIAs  competitive  concerns  involve 
 reimbursement  issues  before  DoJ,  and  not  standard-  setting  issues  before  the  Commission.  121 
 57.  Discussion.  CALEA  does  not  define  cost-  effective.  We  agree  with  those  commenters  who  suggest  one  approach  for  determining  whether  something  is  cost-  effective  is  to  compare  two  or  more 


 ways  of  accomplishing  a  task  and  identifying  the  process  that  is  the  least  expensive.  We  believe  this  approach  is  consistent  with  the  Remand  Decision,  where  the  Court,  in  addressing  Section  107(  b)(  1)  s 
 requirement  by  cost-  effective  methods,  found  the  Commission  made  no  attempt  to  compare  the  cost  of 


 114  DoJ/  FBI  Ex  Parte  Presentation,  CC  Docket  97-  213,  filed  April  18,  2001,  at  2.  This  figure  represents  an  update 
 from  the  85%  figure  DoJ/  FBI  provided  in  its  November  2000  Comments.  See  DoJ/  FBI  Comments  at  36-  40.  115 
 DoJ/  FBI  Comments  at  40,  43.  116 
 Id.  at  31,  36-  37.  117 
 With  respect  to  proposed  alternatives  for  dialed  digit  extraction,  DoJ/  FBI  assert  that  they  fail  to  qualify  under  Section  107(  b)  because  they  are  inadequate  to  meet  the  assistance  capability  requirements  of  Section  103.  We 


 discuss  dialed  digit  extraction    and  these  proposed  alternatives    infra.  118 
 DoJ/  FBI  Comments  at  32,  43-  47.  119 
 DoJ/  FBI  Reply  Comments  at  19-  20.  120 
 Id.  at  19-  20.  121 
 Id.  at  20-  21. 
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 implementing  the  punch  list  capabilities  with  the  cost  of  obtaining  the  same  information  through  alternative  means.  122  Additionally,  the  Commission  has  previously  used  the  phrase  to  describe  a 
 comparative  process,  123  although  it  has  not  had  the  opportunity  to  consider  cost-  effective  as  a  statutory  term.  We  find  further  support  for  this  interpretation  of  cost-  effective  in  other  statutes  where  Congress 
 has  defined  or  described  the  term,  124  as  well  as  in  other  agencies  rules.  125  Thus,  we  think  it  makes  sense  to  consider  whether  a  particular  option  is  better  than  some  alternative  at  achieving  some  particular 
 regulatory  requirement,  when  such  a  comparison  is  available.  126  As  described  infra  in  our  analysis  of  each  punch  list  capability,  we  first  inquire  whether  we  have  in  the  record  an  alternative  means  to 
 accomplish  each  of  the  punch  list  capabilities.  127  To  the  extent  that  we  determine  that  each  punch  list  capability  meet(  s)  the  assistance  capability  requirements  of  CALEA,  but  we  are  unable  to  compare  the 
 cost  of  implementing  the  punch  list  capabilities  with  the  cost  of  obtaining  the  same  information  though  alternative  means,  we  will  not  end  our  inquiry.  Although  we  think,  based  on  the  comments,  the  Remand 
 Decision,  the  Commissions  prior  interpretation  of  the  term  and  other  statutes  that  have  interpreted  the 
 122  227  F.  3d  at  461. 
 123  See,  e.  g.,  47  C.  F.  R.    54.  603(  b)(  4);  47  C.  F.  R.    54.  615  (c)(  7)  (same  definition)  (providing,  in  the  Universal 
 Service  context,  that  the  most  cost-  effective  method  of  providing  a  service  is  defined  as  the  method  that  costs  the  least  after  consideration  of  the  features,  quality  of  transmission,  reliability,  and  other  factors  that  the  health  care 


 provider  deems  relevant  to  choosing  a  method  of  providing  the  required  health  care  services).  124 
 .  .  .  the  term  cost  effective  means  costing  no  more  than  the  available  alternatives,  determined  by  a  comparison  of  all  related  direct  and  indirect  costs  .  .  .  and  taking  into  account  the  ability  of  each  alternative  to 


 accommodate  mission  requirements  as  well  as  the  related  factors  of  risk,  reliability,  schedule,  and  technical  performance.  .  .  .  (15  U.  S.  C.    5802,  Commercial  Space  Competitiveness)  (emphasis  added);    Cost-  effective, 
 when  applied  to  any  measure  or  resource  referred  to  in  this  chapter,  means  that  such  measure  or  resource  must  be  forecast    (i)  to  be  reliable  and  available  within  the  time  it  is  needed,  and  (ii)  to  meet  or  reduce  the  electric  power 
 demand,  .  .  .  of  the  consumers  of  the  customers  at  an  estimated  incremental  system  cost  no  greater  than  that  of  the  least-  cost  similarly  reliable  and  available  alternative  measure  or  resource,  or  any  combination  thereof.  (16  U.  S.  C. 
   839(  a),  Pacific  Northwest  Electric  Power  Planning  and  Conservation)  (emphasis  added).  See  also  2  U.  S.  C.  1535  (  Least  burdensome  option  or  explanation  required);  10  C.  F.  R.  436.  16  (  Measuring  Cost-  effectiveness); 
 40  C.  F.  R.  Part  35,  Subpart  E,  App.  A  (  Cost-  Effectiveness  Analysis  Guidelines);  but  see  5  U.  S.  C.  552(  a)(  u)(  4)(  A)  (requiring  a  board  to  conduct  a  cost-  benefit  analysis  to  demonstrate  that  a  program  is  cost-  effective). 
 125  The  Department  of  Commerces  National  Oceanic  and  Atmospheric  Administration  has  defined  cost-  effective 
 to  mean  the  least  costly  activity  among  two  or  more  activities  that  provide  the  same  or  a  comparable  level  of  benefits,  in  the  judgment  of  the  trustees.  15  C.  F.  R.    990.  30.  Similarly,  the  Department  of  Interior  has  defined 


 cost-  effective  to  mean  that  when  two  or  more  activities  provide  the  same  or  a  similar  level  of  benefits,  the  least  costly  activity  providing  that  level  of  benefits  will  be  selected.  43  C.  F.  R.    11.  14(  j).  The  Department  of  Defense 
 has  defined  cost  effective  to  mean  that  the  required  level  of  workload  (output,  as  described  in  the  performance  work  statement)  is  accomplished  with  as  little  resource  consumption  (input)  as  possible  without  degradation  in  the 
 required  quality  level  of  products  or  services.  32  C.  F.  R.    169a.  15(  d)(  3)(  i);  but  see  44  C.  F.  R.    209.2  (requiring,  in  a  Federal  Emergency  Management  Agency  disaster  assistance  program,  that  a  mitigation  activity  will  not  cost  more 
 than  the  anticipated  value  of  the  reduction  in  both  direct  and  indirect  damages  and  subsequent  negative  impacts  to  the  area  if  future  disasters  were  to  occur). 
 126  See  also  Husqvarna  AB  v.  EPA,  254  F.  3d  195  at  200  (D.  C.  Cir.  2001)  (finding  that  because  a  statute  did  not 
 mandate  a  specific  method  of  cost  analysis,  the  Environmental  Protection  Agencys  choice  of  how  to  consider  costs  was  reasonable).  In  this  case,  we  recognize  that  the  statute  does  not  define  cost-  effective  and  look  to  other  sources 


 to  give  this  term  meaning.  127 
 To  the  extent  that  commenters  suggest  that  the  Commission  must  independently  search  for  alternative  means  of  meeting  a  CALEA  capability  and  then  evaluate  which  is  the  least  expensive  to  implement,  we  see  nothing  in  the 


 statute  that  would  support  such  an  interpretation  and  we  reject  that  approach.  We  note  that  we  have  solicited  comment  as  to  whether  the  punch  list  capabilities  met  CALEAs  assistance  capability  requirements,  and  we  will 
 consider  infra  the  punch  list  capabilities,  arguments  that  they  do  not  comply  with  CALEAs  requirements,  and  alternative  means  that  have  been  proposed  for  complying  with  CALEA.  Further  independent  inquiry  on  our  part 
 would  quickly  stray  from  the  record  developed  in  this  proceeding. 
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 term,  that  a  cost  comparison  is  the  most  useful  means  of  determining  whether  something  is  cost-effective,  we  recognize  that  it  may  not  be  the  only  method.  If  we  cannot  make  a  cost  comparison,  we 
 will  consider  other  ways  of  determining  whether  a  punch  list  capability  is  cost-  effective.  We  disagree  with  those  who  would  have  us  end  our  inquiry  once  we  determine  that  there  are  no  alternative  means  of 
 meeting  a  CALEA  capability,  because  under  such  circumstances  other  methods  of  measurement  may  assist  the  Commission  in  giving  meaning  to  the  cost-  effective  element. 


 58.  We  find  merit  in  BellSouths  suggestion  that  something  can  be  cost-  effective  if  it  serves  to  minimize  costs.  In  general,  something  is  effective  if  it  accomplishes  a  task  in  an  efficient  manner.  128 
 At  the  same  time,  we  approach  this  evaluation  cautiously.  We  disagree  with  USTA  that  CALEA  costs    including  punch  list  costs    are  solely  for  the  benefit  of  LEAs.  The  public  benefits  of  implementing  the 
 vacated  punch  list  capabilities  could  be  large,  if  these  capabilities  significantly  assist  in  crime  reduction  and  prevention.  For  example,  granting  LEAs  these  capabilities  could  potentially  play  a  major  role  in  the 
 timely  apprehension  of  a  terrorist  suspect.  The  benefits  of  just  one  such  apprehension  could  be  countless  lives  saved  and  billions  of  dollars.  129  However,  we  decline  to  adopt  or  reject  a  capability  solely  on  the  basis 
 of  a  cost-  benefit  analysis  because  Congress  has  already  made  such  a  calculation  when  it  determined  the  assistance  capability  requirements  of  CALEA.  130 


 59.  For  these  reasons,  we  think  those  comments  that  would  have  us  reject  the  punch  list  capabilities  solely  because  they  would  be  costly  to  implement  are  incorrect.  As  an  initial  matter,  we  note 
 that  there  are  costs  associated  with  CALEA,  and  it  is  clear  that  Congress  anticipated  that  carriers  would  bear  some  of  these  costs.  131  However,  as  part  of  our  examination  of  whether  a  technical  standard  that  we 
 require  under  CALEA  is  cost-  effective,  we  will  consider  the  financial  burden  it  places  on  carriers.  In  the  case  of  the  punch  list  capabilities,  we  note  that  several  aspects  of  the  implementation  program 
 significantly  mitigate  this  burden,  which  serves  to  make  implementation  of  the  punch  list  capabilities  cost-  effective  for  carriers. 


 60.  First,  DoJ/  FBI  will  be  paying  for  many  of  the  costs  associated  with  implementing  the  four  vacated  punch  list  capabilities.  For  more  than  90%  of  switches,  DoJ/  FBI  state  that  they  have  reached 
 buyout  agreements  with  manufacturers  to  pay  for  all  necessary  software  upgrades,  and  those  upgrades  represent  a  significant  portion  of  the  total  cost  of  implementing  the  four  vacated  punch  list  capabilities.  132 
 Second,  for  the  majority  of  switches,  carriers  will  be  permitted  to  implement  required  punch  list  capabilities  coincident  with  routine  switch  upgrades.  Thus,  most  carriers  may  defer  punch  list  costs  to 
 achieve  implementation  efficiencies;  i.  e.,  punch  list  costs  will  be  effectively  lessened  because  most  carriers  will  not  have  to  perform  a  special  punch  list  software  upgrade.  Third,  five  telecommunications 
 equipment  manufacturers  have  incorporated  all  six  punch  list  capabilities  required  by  the  Third  R&  O  into  one 


 128  Websters  New  World  Dictionary,  College  ed.  (1962)  at  462. 
 129  We  note  that  total  costs  to  insurers  of  the  September  11,  2001  terrorist  attacks  in  the  United  States  have  been 
 conservatively  estimated  at  $US40bn.  and  estimated  at  $30  billion  to  $70  billion.  See,  respectively,  The  Australian  Financial  Review,  Australasian  Business  Intelligence  by  Devon  Spurgeon,  October  26,  2001;  and  USA 


 Today,  House  passes  terrorism-  insurance  bill,  November  30,  2001  at  1B.  130 
 However,  we  think  it  is  illustrative  in  this  case  insofar  that  it  supports  our  contention  that  we  should  not  put  undue  weight  on  the  absolute  cost  of  implementing  a  capability  as  part  of  a  determination  as  to  whether  it  meets 


 CALEA  by  cost-  effective  methods. 
 131  See  140  Cong.  Rec.  H10773-  02,  10782  (daily  ed.  October  4,  1994)  (reporting  various  statements  of 
 representatives  discussing,  inter  alia,  the  legislations  costs  to  industry).  132 
 See  Order,  supra  n.  17  at  16  FCC  Rcd  17402    9. 
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 software  upgrade,  133  and  it  is  unclear  whether  deleting  one  or  more  of  these  capabilities  from  that  upgrade  will  lessen  the  cost  of  the  upgrade  to  those  carriers  that  purchase  software  from  manufacturers  that  are  not 
 covered  by  the  DoJ/  FBI  buyout  agreements.  134  Fourth,  carriers  can  recover  at  least  a  portion  of  their  CALEA  software  and  hardware  costs  by  charging  to  LEAs,  for  each  electronic  surveillance  order 
 authorized  by  CALEA,  a  fee  that  includes  recovery  of  capital  costs,  as  well  as  recovery  of  the  specific  costs  associated  with  each  order.  135  Finally,  carriers  are  not  required  to  pay  to  make  CALEA-  compliant 
 any  equipment,  facility,  or  service  deployed  on  or  before  January  1,  1995,  unless  that  equipment,  facility,  or  service  has  been  replaced,  significantly  upgraded,  or  undergone  major  modification.  136  Therefore,  for 
 many  switches,  there  will  be  few  costs  attributable  to  CALEA.  Together,  these  factors  support  a  finding  that  the  punch  list  capabilities  represent  cost-  effective  methods  to  meet  CALEAs  requirements. 


 61.  We  also  disagree  with  CTIA  that  potential  absence  of  a  level  playing  field  for  individual  carriers  should  cause  us  to  reject  inclusion  of  any  punch  list  capability.  To  the  extent  that  a  carrier 
 believes  that  implementing  any  required  capability  is  not  reasonably  achievable  for  cost  or  other  reasons  with  respect  to  any  equipment,  facility,  or  service  deployed  after  January  1,  1995,  the  carrier  may  petition 
 the  Commission  under  Section  109(  b)  of  CALEA  for  a  determination  as  to  whether  it  must  pay  for  any  such  implementation.  137  With  specific  respect  to  the  costs  of  the  six  punch  list  capabilities  cited  by 
 BellSouth,  it  is  unclear  what  BellSouths  costs  would  be  for  the  two  uncontested  capabilities  alone,  and  how  the  DoJ/  FBI  buyout  and  flexible  deployment  programs  affect  those  costs    whether  for  two,  three,  four,  five, 
 or  six  punch  list  capabilities. 
 62.  We  agree  with  commenting  parties  that  we  must  consider  the  effect  of  CALEA  compliance  on  residential  ratepayers  under  Section  107(  b)(  3).  For  the  reasons  discussed  below,  we  consider  the 


 effects  on  residential  wireline  subscribers  only.  Although  CALEA  does  not  define  the  term  residential  ratepayers,  we  note  that  in  debating  the  CALEA  bill  in  the  House  of  Representatives  (H.  R.  4922), 
 Congressman  Markey  stated:  Section  109(  b)(  1)  lists  several  factors  the  Commission  should  consider  in  determining  whether  compliance  is  reasonable.  These  factors  direct  the  Commissions  attention  to,  inter 
 alia,  the  impact  on  rates  for  basic  residential  telephone  service  .  .  .  .  138  Wireless  telecommunications  services  such  as  cellular  or  PCS  are  intrinsically  mobile  services,  and  we  have  not  previously  attempted  to 


 133  See  DoJ/  FBI  Ex  Parte  Presentation,  CC  Docket  97-  213,  filed  April  18,  2001,  at  2.  We  also  note  that  USTA  made 
 an  ex  parte  presentation  in  this  proceeding  on  April  25,  2001.  As  part  of  that  presentation,  USTA  attached  a  table  showing  the  CALEA  capability  of  eight  wireline  manufacturers.  Four  of  those  manufacturers    Siemens,  Nortel, 


 Lucent,  and  AG  Communications  Systems  (  AGCS)    included  all  six  punch  list  capabilities  on  six  major  switches.  On  five  of  these  switches    Siemens  EWSD,  Siemens  DCO,  Nortel  DMS-  10,  Lucent  5E,  and 
 AGCS  GTD5    a  toggle  permits  each  capability  to  be  disabled  if  it  is  not  required.  On  the  remaining  switch    Nortel  DMS-  100    a  toggle  permits  each  capability  except  party  hold/  join/  drop  to  be  disabled  if  it  is  not  required. 
 There  was  less  information  available  regarding  the  switches  of  the  other  four  wireline  manufacturers    Mitel,  Redcom,  Ericsson,  and  American  Digital  Switching  (  ADS).  For  the  Mitel  GX5000,  it  was  not  known  whether 
 the  punch  list  capabilities  would  be  offered;  for  the  Redcom  MDXI,  software  version  6  did  not  include  the  punch  list  capabilities  and  software  version  7,  due  in  mid-  2002,  is  scheduled  to  include  two  punch  list  capabilities;  for  the 
 Ericsson  AKE10,  a  software  release  date  had  not  been  established;  and  for  the  ADS  Centura  2000,  there  was  no  resolution  regarding  the  punch  list  capabilities.  See  USTA  Ex  Parte  Presentation,  CC  Docket  97-  213,  filed  April  26, 
 2001,  at  Table.  134 
 Accordingly,  software  costs  for  the  punch  list  capabilities  may  no  longer  be  variable  based  upon  the  number  of  punch  list  capabilities  that  we  deem  to  be  CALEA  requirements. 


 135  See,  e.  g.,  47  U.  S.  C.    229(  e)  and  collateral  state  regulations. 
 136  See  Section  109(  d)  of  CALEA,  47  U.  S.  C.    1008(  d). 
 137  47  U.  S.  C.    1008(  b). 
 138  See  140  Cong.  Rec.  H10773-  02,  10780  (daily  ed.  October  4,  1994)  (statement  of  Rep.  Markey). 
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 describe  what  basic  residential  service  is  in  the  wireless  context,  nor  have  we  differentiated  between  residential  and  other  classes  of  wireless  service.  139  By  contrast,  the  concept  of  residential  ratepayer  has 
 historically  been  used  in  the  context  of  rate  regulation  for  wireline  telecommunication  service,  which  traditionally  differentiates  rates  for  residential  and  business  customers.  Interpreting  the  legislative  history 
 to  reflect  Congresss  desire  to  ensure  that  basic  wireline  telephone  rates  would  not  be  significantly  affected  by  CALEA  is  supported  by  other  provisions  in  CALEA.  For  example,  Section  229(  e)(  1)  allows 
 carriers  to  petition  the  Commission  to  adjust  rates  to  recover  costs  expended  in  satisfying  CALEAs  capability  requirements,  and  Section  229(  e)(  3)  directs  the  Commission  to  convene  a  Federal-  State  joint 
 board  to  recommend  appropriate  changes  to  the  Commissions  rules  for  recovering  costs  pursuant  to  the  Commissions  jurisdiction.  Both  of  these  provisions  apply  only  to  wireline  telecommunications  carriers. 
 Pursuant  to  Section  332  of  the  Communications  Act,  states  do  not  have  authority  to  regulate  rates  for  commercial  mobile  radio  services  140  and  the  Commission  has  forborne  from  such  rate  regulation.  141 
 Because  Congress  enacted  Section  332  (and  the  Commission  adopted  its  forbearance  decision)  prior  to  CALEA,  it  is  reasonable  to  conclude  that  Congress  was  aware  of  the  lack  of  rate  regulation  for  wireless 
 services.  Accordingly,  it  is  appropriate  to  limit  our  consideration  of  the  effect  on  residential  ratepayers  to  those  whose  rates  are  regulated. 


 63.  In  addition,  we  note  that  at  the  time  CALEA  was  enacted  in  October  1994,  there  were  many  more  households  with  telephones  than  wireless  subscribers.  142  Moreover,  we  note  that  about  94%  of 
 households  had  telephone  service  when  CALEA  was  enacted  and  that  basic  residential  telephone  service  at  that  time  was  almost  entirely  wireline.  143  Accordingly,  it  seems  clear  that,  in  expressing 


 139  We  recognize  that  some  wireless  subscribers  may  use  that  service  as  a  substitute  for  traditional  wireline  service, 
 but  we  have  only  limited  data  on  the  extent  to  which  that  occurs;  see  n.  143,  infra.  140 
 47  U.  S.  C.  332  (enacted  as  part  of  the  Omnibus  Budget  Reconciliation  Act  of  1993,  Pub.  L.  No.  103-  166,  Title  VI,  6002(  b),  107). 


 141  Implementation  of  Sections  3(  N)  and  332  of  the  Communications  Act    Regulatory  Treatment  of  Mobile 
 Services,  Second  Report  and  Order,  GN  Docket  No.  93-  252,  9  FCC  Rcd  1411  (1994).  142 
 The  number  of  U.  S.  households  with  telephones  is  about  102  million  currently,  and  was  about  94  million  at  the  time  CALEA  was  enacted.  See  Telephone  Subscribership  in  the  United  States,  released  by  the  FCCs  Common 


 Carrier  Bureau  (now  Wireline  Competition  Bureau)  on  February  7,  2002.  Table  1  shows  that  the  number  of  households  with  telephones  was  101.  7  million  as  of  July  2001,  100.2  million  as  of  November  2000,  and  93.  7  million 
 as  of  November  1994.  Appendix  C,  Table  1  of  our  Sixth  Annual  CMRS  Competition  Report,  FCC  01-  192,  released  July  17,  2001,  shows  that  there  were  109.5  million  wireless  subscribers  as  of  December  2000  and  24.1  million 
 wireless  subscribers  as  of  December  1994.  Thus,  there  are  currently  more  wireless  subscribers  than  households  with  telephones;  however,  as  of  late  1994,  there  were  about  four  times  as  many  households  with  telephones  as  wireless 
 subscribers.  143 
 See  Telephone  Subscribership  in  the  United  States,  supra  n.  142.  Table  1  shows  that,  as  of  November  1994,  the  percentage  of  households  with  telephones  was  93.  8%.  While,  as  discussed  in  n.  142,  there  were  about  24  million 


 wireless  subscribers  at  that  time,  it  would  have  been  cost-  prohibitive  for  households  to  use  wireless  telephone  service  as  a  substitute  for  basic  wireline  telephone  service  in  late  1994  because  wireless  telephone  rates  were  much 
 higher  than  at  present.  Appendix  C,  Table  8  of  the  Sixth  Annual  CMRS  Competition  Report  shows  that  the  cellular  consumer  price  index  (  CPI)  declined  by  29%  between  December  1997  and  December  2000,  versus  an  increase  in 
 the  local  telephone  CPI  of  10%  during  that  same  period.  The  cellular  CPI  is  not  available  prior  to  December  1997,  but  in  2001  the  Strategis  Group,  Inc.  estimated  that  the  average  price  per  minute  for  mobile  telephone  service  was  57 
 cents  in  1994,  43  cents  per  minute  in  1997,  and  21  cents  per  minute  in  2000;  see  Thomas  J.  Sugrue,  Opening  Remarks  to  Sixth  Annual  CMRS  Competition  Report,  June  20,  2001,  at  slide  5.  Thus,  it  seems  clear  that  between 
 1994  and  2000  there  was  a  major  decrease  in  wireless  rates  that  fueled  the  dramatic  increase  in  the  number  of  wireless  subscribers  during  that  period,  including  some  households  substituting  wireless  service  for  wireline  service. 
 According  to  a  Yankee  Group  survey  of  early  2001,  about  3%  of  wireless  subscribers  did  not  have  a  wireline  telephone,  and  a  CTIA  survey  of  early  2000  estimated  that  this  percentage  could  be  as  high  as  5%.  See  Sixth  Annual 
 CMRS  Competition  Report,  supra  n.  142  at  32  n.  207. 
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 concern  about  the  impact  of  CALEA  compliance  on  residential  ratepayers,  Congress  was  referring  to  wireline  subscribers. 
 64.  We  believe  that  the  general  approach  we  have  taken  with  our  analysis  of  cost-  effective  is  applicable  in  considering  ways  of  minimizing  the  impact  on  residential  ratepayers.  That  which  is  cost-effective 
 is  also  likely  to  correlate  to  the  effect  on  residential  ratepayers,  and  so  many  of  the  factors  we  have  identified  in  our  discussion  of  107(  b)(  1)  will  also  apply  to  a  107(  b)(  3)  analysis.  We  conclude  that  the 
 capabilities  that  we  have  identified    and  the  means  of  implementing  them    do  serve  to  minimize  the  cost  on  residential  ratepayers.  The  DoJ/  FBI  buyout  agreements  incorporate  costs  related  to  the  four  punch  list 
 capabilities,  and  therefore  will  serve  to  reduce  the  overall  cost  borne  by  carriers  and  passed  through  to  their  ratepayers    including  residential  ratepayers.  144  The  flexible  deployment  program  sponsored  by 
 DoJ/  FBI  permits  carriers,  in  many  circumstances,  to  deploy  CALEA-  compliant  software  over  the  course  of  regularly  scheduled  upgrades.  The  incorporation  of  CALEA  deployment  into  the  regular  business 
 cycle  can  produce  efficiencies  that  reduce  CALEA  compliance  costs.  145  Section  229(  e)  of  the  Communications  Act  sets  forth  a  cost  recovery  process  by  which  a  common  carrier  may  petition  the 
 Commission  to  adjust  charges  to  recover  costs  associated  with  CALEA  compliance.  146  Because  this  provision  gives  the  Commission  authority  to  approve  these  changes  consistent  with  maintaining  just  and 
 reasonable  charges,  and  in  furtherance  of  both  the  Communications  Act  and  CALEA,  we  conclude  that  any  CALEA-  based  charges  that  traditional  wireline  carriers  wish  to  pass  on  to  residential  ratepayers  will 
 be  afforded  additional  Commission  review,  whereupon  the  Commission  can  insure  that  residential  ratepayer  costs  are  minimized.  Finally,  Section  109  serves  as  an  ultimate  check  on  cost  considerations. 
 To  the  extent  that  a  carrier  believes  that  it  cannot  undertake  the  implementation  of  a  particular  capability  with  respect  to  any  equipment,  facility,  or  service,  it  may  request  a  determination  as  to  whether  the 
 capability  is  reasonably  achievable.  147  We  conclude  that  the  punch  list  capabilities  are  supported  by  DoJ/  FBI  cost-  minimization  programs  that  serve  to  shift  costs  away  from  or  ameliorate  the  cost  impact  on 
 carriers.  148  These  measures,  in  turn,  minimize  the  impact  on  the  residential  ratepayers  who  otherwise  might  see  these  costs  reflected  in  higher  bills. 


 65.  To  the  extent  that  there  are  costs  borne  by  the  carriers  and  passed  through  to  customers,  we  note  that  it  is  likely  that  the  costs  would  be  shared  by  all  ratepayers  and,  therefore,  would  be  significantly  diluted 
 on  an  individual  residential  ratepayer  basis.  149  The  fact  that  costs  are  spread  across  such  a  large  base  in  itself  suggests  another  means  by  which  provision  of  these  capabilities  will  minimize  the  effect  on  residential 


 144  See  DoJ/  FBI  Reply  Comments  at  18-  19. 
 145  Id.  at  41. 
 146  47  U.  S.  C.  229(  e). 
 147  We  reject  those  commenters  who  would  have  us  pre-  empt  this  capability  as  not  reasonably  available  under 
 Section  103(  a)(  2)  because  such  an  approach  fails  to  take  into  account  the  particular  equipment,  facility,  or  service  that  may  be  used  to  deploy  this  capability  on  a  case-  by-  case  basis.  See  DoJ/  FBI  Reply  Comments  at  11.  Section  109 


 provides  a  method  for  a  carrier  to  obtain  a  determination  that  CALEA  compliance  with  respect  to  its  particular  equipment,  facility,  or  service  is  not  reasonably  achievable  without  eliminating  this  capability  in  other  situations 
 where  it  is,  in  fact,  reasonably  achievable.  148 
 Several  commenters  note  that  these  programs  may  not  apply  to  all  situations  and,  therefore,  they  assert  that  there  may  be  particular  situations  in  which  the  cost-  minimization  programs  will  not  minimize  costs.  See,  e.  g.,  NTCA 


 Comments  at  4  (  Other  carriers  may  have  filed  flexible  deployment  plans  that  the  FBI  finds  unacceptable.  These  carriers  will  be  forced  to  update  their  equipment  immediately  at  considerable  expense  or  face  the  potential  fines 
 associated  with  CALEA.)  We  do  not  think  that  the  fact  that  there  may  be  some  cases  where  the  DoJ/  FBI  programs  do  not  apply  serves  to  defeat  our  conclusion  that,  as  a  whole,  they  reduce  the  cost  to  residential  ratepayers  associated 
 with  the  implementation  of  the  punch  list  capabilities.  149 
 We  discuss  this  concept  as  it  is  applied  to  each  punch  list  capability  in  greater  depth  infra. 
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 ratepayers    that  the  cost  of  CALEA  compliance  for  any  particular  residential  ratepayer  will  be  minimal.  150  In  this  connection,  we  note  that,  even  if  the  definition  of  residential  ratepayers  is  broadened  to  include 
 households  that  use  wireless  telephone  service  as  a  substitute  for  local  wireline  telephone  service,  there  is  no  reason  to  believe  that  implementation  of  the  punch  list  items  would  fail  to  minimize  the  cost  on 
 wireless  residential  ratepayers.  In  the  Third  R&  O,  the  Commission  found  that  five  major  telecommunications  manufacturers    which  account  for  the  great  majority  of  sales  to  wireline,  cellular,  and 
 broadband  PCS  carriers  in  the  United  States    anticipated  total  revenues  from  carriers  purchasing  the  four  vacated  punch  list  capabilities  of  about  $277  million.  Of  this  amount,  about  $159  million  was  anticipated  in 
 wireless  revenues  and  about  $117  million  was  anticipated  in  wireline  revenues.  151  While  these  figures  do  not  include  all  carrier  costs  of  implementing  the  four  capabilities,  in  the  Third  R&  O  we  found  that,  relative  to 
 other  cost/  revenue  estimates,  the  manufacturers  estimates  were  the  most  detailed  and  reliable.  152  Further,  the  FBIs  buyout  and  flexible  deployment  programs,  coupled  with  manufacturers  incorporating  all  punch  list 
 capabilities  into  one  software  upgrade,  would  likely  lessen  costs  to  such  an  extent  that  total  costs  of  implementing  the  four  vacated  capabilities  nationwide  would  be  well  below  $159  million  to  wireless  carriers 
 and  $117  million  to  wireline  carriers.  Nonetheless,  assuming  pessimistically  that  those  costs  would  eventuate  and  that  they  would  be  passed  on  to  wireless  subscribers  and  residential  wireline  ratepayers  in  full  as  a  one-time 
 charge,  the  respective  charge  per  wireless  subscriber  and  residential  wireline  ratepayer  would  average  about  $1.  45  and  $1.20.  153  Alternatively,  if  these  costs  to  wireless  and  wireline  carriers  were  converted  to  a 
 rate  increase  to  wireless  subscribers  and  residential  wireline  ratepayers,  the  rate  increase  would  average  only 


 150  We  recognize  that  these  costs  will  likely  be  greater  on  a  individual  residential  ratepayer  basis  in  those  rural  areas 
 where  there  is  a  smaller  base  over  which  to  spread  costs.  See  RCA  comments  at  7.  These  carriers  may  serve  areas  that  do  not  have  a  history  of  LEA  surveillance  requests  and  are  eligible  for  DoJ/  FBI  extended  implementation.  This 


 circumstance  will  serve  to  reduce  the  cost  to  carriers  and,  thus,  residential  ratepayers,  because  of  implementation  efficiencies.  We  acknowledge  that  this  does  not  change  the  per  capita  cost  rural  ratepayers  may  have  to  pay  vis-  -vis 
 urban  customers,  but  note  that  CALEA  requires  us  only  to  establish  standards  that  minimize  the  cost  on  residential  ratepayers.  We  read  this  provision  to  require  us  to  minimize  the  cost  of  compliance  on  residential 
 ratepayers,  and  not  as  a  mandate  to  insure  that  all  ratepayers  pay  exactly  the  same  costs    whether  they  are  in  a  rural  area  with  a  smaller  ratepayer  base  or  because  they  are  in  a  high-  crime  area  in  which  the  flexible  deployment 
 program  is  unavailable.  151 
 Third  R&  O,  supra  n.  2,  at  Appendix  B.  These  figures  are  derived  by  adding  the  estimated  total  revenues  for  the  four  vacated  punch  list  capabilities:  party  hold,  join,  drop  messages;  subject-  initiated  dialing  and  signaling;  in-  band 


 and  out-  of-  band  signaling;  and  dialed  digit  extraction.  The  sum  of  wireless  and  wireline  revenues  does  not  add  to  the  total  due  to  rounding. 
 152  Id.  at  n.  68.  We  think  this  continues  to  be  the  case,  particularly  because  these  manufacturers  represent  such  a 
 large  portion  of  the  network  equipment  industry  and  we  have  not  received  any  new  reliable  industry-  wide  cost  estimates  to  replace  these  earlier  estimates. 


 153  As  discussed  in  n.  142,  supra,  there  are  currently  about  109.  5  million  wireless  subscribers  and  about  101.7  million 
 households  with  telephones.  Dividing  the  $159  million  estimated  wireless  cost  by  109.  5  million  wireless  subscribers  yields  a  cost  of  $1.45  per  wireless  subscriber.  The  cost  per  residential  wireline  ratepayer  cannot  be 


 calculated  as  exactly  because  some  of  the  101.  7  million  households  that  have  telephones  may  have  wireless  service  only.  The  Bureau  of  Census  includes  questions  on  telephone  availability  as  part  of  its  Current  Population  Series 
 (  CPS).  The  question  asked  in  the  CPS  that  is  most  relevant  to  the  issue  of  the  number  of  households  that  have  wireline  service  is:  Is  there  a  telephone  in  this  house/  apartment?  See  Telephone  Subscribership  in  the  United 
 States,  supra  n.  142  at  2.  That  question  could  be  interpreted  by  some  respondents  to  mean  a  wireline  telephone  only,  i.  e.,  a  telephone  that  can  be  used  only  in  the  house/  apartment;  while  other  respondents  may  interpret  the  question  to 
 mean  either  a  wireline  or  wireless  telephone,  i.  e.,  either  a  telephone  that  can  be  used  only  in  the  house/  apartment  or  a  telephone  that  can  be  used  both  in  the  house/  apartment  and  outside  the  house/  apartment.  Based  on  the  surveys 
 done  by  the  Yankee  Group  and  CTIA,  supra  n.  143,  we  will  use  as  the  likely  range  of  households  that  have  wireline  telephones  96-  98  million.  Dividing  the  $117  million  estimated  wireline  cost  by  98  million  residential  wireline 
 ratepayers  yields  $1.  19  per  residential  wireline  ratepayer,  and  dividing  the  $117  million  estimated  wireline  cost  by  96  million  residential  wireline  ratepayers  yields  $1.  22  per  residential  wireline  ratepayer. 
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 pennies  per  month  per  subscriber/  ratepayer.  154  Accordingly,  we  find  that  the  likely  worst-  case  cost  impact  of  carriers  implementing  the  four  vacated  capabilities  would  be  minimal  on  both  wireless  subscribers  and 
 residential  wireline  ratepayers. 
 C.  Dialed  Digit  Extraction 
 66.  This  capability  would  require  the  telecommunications  carrier  to  provide  to  the  LEA  on  the  call  data  channel  the  identity  of  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  represents  the  ultimate  destination  of  the  call.  As  discussed  in  paragraph  nine,  supra,  the  Court  found  that  the  Commissions  treatment  of  dialed 
 digit  extraction  in  the  Third  R&  O  was  insufficient  because  it  did  not  explain  the  basis  for  its  conclusion  that  this  capability  constituted  call-  identifying  information,  nor  how  granting  LEAs  this  capability  would  satisfy 
 CALEAs  requirements  by  cost-  effective  methods  or  protect  the  privacy  and  security  of  communications  not  authorized  to  be  intercepted. 


 67.  Comments.  Several  commenters  claim  that  post-  cut-  through  digits  are  never  call-  identifying  from  the  perspective  of  the  originating  carrier.  USTA  states  that  once  the  originating  telephone  network 
 has  processed  a  phone  call,  the  originating  network  does  not  redirect  the  call,  change  its  destination  or  alter  the  point  of  termination.  155  Similarly,  CTIA  states  that  digits  dialed  after  a  call  is  connected  are 
 always  content  from  the  perspective  of  the  originating  carrier,  even  though  those  digits  may  be  call  identifying  from  the  perspective  of  the  subsequent  interexchange  carrier.  CTIA  claims  that  this  is 
 especially  true  for  wireless  carriers,  which  have  no  local  loop,  because  the  digits  used  to  complete  the  call  are  carried  on  the  signaling  or  control  channels  and  post-  cut-  through  digits  are  carried  over  the  content 
 channels.  156  CTIA  also  maintains  that  events  that  occur  on  the  switches  or  facilities  of  other  carriers  are  not  contemplated  or  addressed  by  the  J-  Standard.  157  PCIA  further  notes  that  a  dialed  digit  extraction 
 capability  would  require  an  originating  carrier  to  electronically  monitor  the  call  content  channel  in  order  to  decode  all  digits  dialed  after  calls  are  connected,  and  that  some  post-  cut  through  digits  are  used  for  a 
 variety  of  transactional  purposes  rather  than  for  call  routing.  158 
 68.  USTA  also  argues  that  inclusion  of  dialed  digit  extraction  capability  would  be  onerous  for  carriers  because  it  would  require  them  to  subvert  normal  call  processing  needs  and  buy  additional 


 equipment  solely  to  accommodate  surveillance  activities.  USTA  further  argues  that  J-  STD-  025  provides  for  use  of  a  call  content  channel  to  monitor  the  transmit  path  from  a  subject  and  to  extract  any  post  dialed 
 digits,  and  that  this  existing  capability  is  more  economical  than  a  dialed  digit  extraction  capability  would  be.  159  PCIA  contends  that  post-  cut  through  digits  are  not  reasonably  available  to  the  originating  carrier 


 154  Specifically,  a  cost  of  $159  million  to  wireless  carriers,  converted  to  a  rate  increase  to  109.5  million  wireless 
 subscribers,  would  average  6.  8  cents  per  month  per  wireless  subscriber  using  a  relatively  rapid  amortization  period  of  two  years  and  a  relatively  high  discount  rate  of  12%;  and  would  average  2.  8  cents  per  month  per  wireless 


 subscriber  using  a  relatively  slow  amortization  period  of  five  years  and  a  relatively  low  discount  rate  of  6%.  A  cost  of  $117  million  to  wireline  carriers,  converted  to  a  rate  increase  to  96-  98  million  residential  wireline  ratepayers, 
 would  average  5.6-  5.7  cents  per  month  per  residential  wireline  ratepayer  using  a  relatively  rapid  amortization  period  of  two  years  and  a  relatively  high  discount  rate  of  12%;  and  would  average  2.3-  2.4  cents  per  month  per  residential 
 wireline  ratepayer  using  a  relatively  slow  amortization  period  of  five  years  and  a  relatively  low  discount  rate  of  6%.  155 
 USTA  Comments  at  10.  156 
 CTIA  Comments  at  13.  See  also  Cingular  Comments  at  6;  CDT  Comments  at  6.  157 
 CTIA  Comments  at  12-  14.  158 
 PCIA  Comments  at  8-  9.  159 
 USTA  Comments  at  9-  11. 
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 that  completed  the  call,  and  that  the  originating  carrier  regards  all  post-  cut  through  digits  as  call  content,  even  if  they  are  used  for  call  routing.  160  PCIA  further  contends  that  providing  these  digits  to  LEAs  would 
 be  a  particular  problem  for  wireless  carriers  because  those  carriers  do  not  use  tone  decoders  in  call  processing.  161  Thus,  PCIA  contends,  wireless  carriers  would  have  to  make  major,  expensive 
 modifications  to  their  switches,  including  installation  of  tone  decoders  that  are  otherwise  unnecessary.  162  Similarly,  AT&  T  contends  that  the  cost  of  implementing  a  dialed  digit  extraction  capability  for  wireless 
 carriers  would  be  exorbitant  and  not  cost-  effective  because  dual  tone  multi  frequency  (  DTMF)  tone  extractors  and  decoders  would  be  required  for  every  surveillance  target  and  every  telephone  line 
 potentially  usable  by  that  target  with  advanced  calling  features.  163  AT&  T  recommends  that,  should  the  Commission  require  this  capability,  we  consider  requiring  LEAs  to  extract  post-  cut-  through  dialed  digits 
 on  content  channels  using  their  own  decoders.  164  AT&  T  contends  that  this  would  require  LEAs  to  purchase  only  a  limited  number  of  tone  decoding  collection  devices,  which  would  be  much  less  expensive 
 and  more  efficient  than  requiring  every  switch  in  the  nation  to  be  overhauled  to  provide  a  dialed  digit  extraction  capability.  AT&  T  states  that  the  FBI  has  estimated  that  it  could  cost  LEAs  up  to  $20  million 
 per  year  to  provide  their  own  decoding,  but  AT&  T  asserts  that  this  would  be  far  less  than  the  economic  burden  that  would  be  forced  upon  the  telecommunications  industry  should  carriers  be  required  to  provide 
 and  implement  thousands  of  DTMF  decoders.  165 
 69.  Commenters  also  claim  that  there  are  alternate  means  for  LEAs  to  obtain  the  dialed  digit  functionality.  BellSouth  and  others  contend  that  a  LEA  could  obtain  post-  cut-  through  digits  by  serving 


 the  originating  carrier  with  a  Title  III  order,  which  permits  LEAs  to  access  call  content.  166  Alternatively,  BellSouth  suggests  that  a  LEA  could  obtain  these  digits  by  serving  the  terminating  carrier  with  a  pen 
 register  order.  167  CDT  states  that  dialed  digit  extraction  entails  the  impermissible  interception  of  content,  and  also  states  that  the  alternative  means  discussed  above    namely,  the  use  of  Title  III  warrants  on 
 originating  carriers  or  pen  register  orders  on  terminating  carriers    will  serve  to  protect  privacy.  168  CTIA  also  expresses  concern  about  protecting  the  privacy  of  post  cut  through  dialed  digits,  and  suggests  that  a 
 dialed  digit  extraction  capability  could  lead  to  a  situation  where  the  originating  carrier  would  have  to  extract  spoken  digits  from  the  content  channel.  169  BellSouth  also  expresses  concern  that  requiring  this 
 capability  in  the  absence  of  a  Title  III  warrant  will  jeopardize  its  responsibility  with  respect  to  customer  privacy.  170 


 70.  Both  CTIA  and  AT&  T  contend  that  we  must  consider  the  legality  of  requiring  dialed  digit  extraction  on  a  pen  register.  171  CTIA  maintains  that  18  U.  S.  C.  3121(  c)  was  intended  to  codify  then-existing 
 New  York  law  that  made  it  unlawful  to  use  a  pen  register  device  that  also  had  the  capacity  to 


 160  PCIA  Comments  at  8. 
 161  Id.  at  9. 
 162  Id. 
 163  AT&  T  Comments  at  11. 
 164  Id.  at  12. 
 165  Id.  at  12-  13. 
 166  BellSouth  Comments  at  11.  See  also  CDT  Comments  at  7;  PCIA  Comments  at  3-  6;  CTIA  Comments  at  18-  22. 
 167  BellSouth  Comments  at  11.  See  also  CDT  Comments  at  7. 
 168  CDT  Comments  at  7. 
 169  CTIA  Comments  at  13. 
 170  BellSouth  Reply  Comments  at  17. 
 171  CTIA  Reply  Comments  at  13;  AT&  T  Comments  at  7. 
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 acquire  the  contents  of  the  communication.  172  Others  state  that  DoJ/  FBI  has  not  identified  the  legal  authority  that  would  permit  it  to  obtain  post-  cut-  through  digits  under  a  pen  register,  173  and  suggest  that  it 
 would  be  premature  for  us  to  require  this  functionality  in  the  absence  of  assurance  that  LEAs  could  legally  avail  themselves  of  it.  174  BellSouth  claims  that  the  burden  of  proof  should  be  on  the  government 
 to  toggle  on  this  feature.  175 
 71.  CDT  also  contends  that  LEAs  desire  to  capture  all  telephone  numbers  cannot  justify  requiring  disclosure  of  content,  and  cites  Brown  v.  Waddell,  176  which  held  that  clone  pager  devices 


 cannot  be  authorized  under  pen  register  authority  because  some  of  the  digits  intercepted  may  be  content.  177  CDT  also  maintains  that  privacy  cannot  be  protected  through  a  minimization  scheme,  for 
 there  is  no  such  scheme  that  can  distinguish  between  post-  cut-  through  digits  that  are  content  and  those  that  are  not,  and  it  rejects  the  minimization  requirements  of  Title  III  as  being  applicable  to  a  pen  register 
 order.  178  Finally,  Cingular  claims  that  if  some  digits  are  not  call-  identifying  information,  then  carriers  cannot  be  required  to  provide  all  digits,  179  and  WorldCom  asks  us  to  state  that  the  CALEA  requirements 
 do  not  preclude  LEAs  from  obtaining  the  proper  legal  authority  before  they  obtain  information  that  is  otherwise  required  under  the  statute.  180 


 72.  DoJ/  FBI  refute  claims  that  post-  cut-  through  dialed  digits  are  not  call-  identifying  information  from  the  perspective  of  the  originating  carrier  because  that  carrier  does  not  use  the 
 information  to  route  the  call.  Instead,  DoJ/  FBI  claim  that  CALEA  is  written  to  include  information  that  identifies  the  origin,  direction,  destination,  or  termination  of  a  communication  and  does  not  consider  how 
 a  particular  carrier  handles  the  information.  181  DoJ/  FBI  also  state  that  while  originating  carriers  may  not  themselves  use  post-  cut-  through  digits  for  call  routing  purposes,  neither  the  statutory  definition  of  call-identifying 
 information  nor  CALEA  Section  103(  a)(  2)  limits  a  carriers  obligation  to  call-  identifying  information  that  is  used  by  the  carrier  itself.  182  DoJ/  FBI  also  assert  that  to  hold  that  dialing  and  signaling 
 information  is  not  call-  identifying  if  a  particular  carrier  does  not  use  the  information  for  call  routing  purposes  would  mean  that,  in  many  cases,  telephone  numbers  would  not  qualify  as  call-  identifying 
 information.  DoJ/  FBI  cite  a  conventional  long-  distance  call  in  which  the  originating  carrier  uses  only  the  area  code  to  route  the  call.  DoJ/  FBI  maintain  that  under  the  commenters  interpretation  of  call-identifying 
 information,  only  the  area  code  would  qualify  as  call-  identifying;  hence  the  originating  carrier  would  be  under  no  obligation  to  provide  an  LEA  the  rest  of  the  telephone  number.  DoJ/  FBI  contend  that 
 CTIA  is  incorrect  in  suggesting  that,  if  carriers  were  to  supply  to  LEAs  post-  cut-  through  dialed  digits, 
 172  CTIA  Comments  at  20,  citing  People  v.  Bialostok,  80  N.  Y.  2d  738,  610  N.  E.  2d  374  (1993). 
 173  BellSouth  Reply  Comments  at  15. 
 174  Id.  at  15-  16.  See  also  AT&  T  Comments  at  10;  WorldCom  Comments  at  5. 
 175  BellSouth  Reply  Comments  at  16  n43. 
 176  50  F.  3d  285  (4  th  Cir.  1995). 
 177  CDT  Comments  at  4-  7. 
 178  Id.  at  8. 
 179  Cingular  Reply  Comments  at  14. 
 180  WorldCom  Comments  at  5. 
 181  DoJ/  FBI  Comments  at  21;  DoJ/  FBI  Reply  Comments  at  12.  DoJ/  FBI  suggest  that  if  a  subject  dials  the  same 
 number  to  reach  the  same  party  on  two  different  occasions    the  first  by  calling  the  party  directly  and  the  second  by  dialing  the  number  after  being  cut-  through  to  a  calling  card  service    that  [  t]  here  is  no  possible  statutory  basis  for 


 suggesting  that  the  same  telephone  number  is  call-  identifying  information  the  first  time  and  something  else  the  second  time.  DoJ/  FBI  Comments  at  19. 
 182  DoJ/  FBI  Comments  at  20-  21. 
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 that  would  expand  LEAs  surveillance  capabilities  beyond  their  traditional  scope.  DoJ/  FBI  maintain  that  LEAs  have  always  had  the  capability  to  obtain  dialed  digits,  post-  cut-  through  as  well  as  pre-  cut-  through, 
 and  that  only  the  methods  of  obtaining  those  dialed  digits  have  varied.  183  DoJ/  FBI  also  claim  that,  because  dialed  digit  extraction  is  merely  a  capability,  we  may  require  it  without  conflicting  with 
 CALEAs  provision  that  limits  a  LEA  from  requiring  a  specific  design  of  equipment,  facilities,  services,  features,  or  system  configurations.  184 


 73.  As  DoJ/  FBI  state,  the  applicability  of  the  pen  register  statute  to  post-  cut-  through  dialed  digits  has  been  disputed  in  the  comments  to  this  proceeding,  and  the  Court  noted  that  this  issue  has  yet  to  be 
 resolved.  185  However,  DoJ/  FBI  contend  that  we  need  not  resolve  this  issue  if  we  distinguish  between  providing  the  capability  to  perform  dialed  digit  extraction  and  requiring  carriers  to  deliver  this 
 information.  186  We  can  find  the  former  is  required  as  a  CALEA  capability,  DoJ/  FBI  contend,  while  emphasizing  that  a  carrier  need  only  provide  this  information  pursuant  to  a  lawful  instrument,  whether 
 that  instrument  is  a  pen  register  or  a  Title  III  warrant.  Furthermore,  DoJ/  FBI  contend,  we  can  further  CALEAs  privacy  considerations  by  requiring  carriers  to  have  the  capability  to  turn  off  dialed  digit 
 extraction  and  refining  the  dialed  digit  extraction  requirement  if  technology  is  subsequently  developed  that  distinguishes  between  post-  cut-  through  digits  that  are  call-  identifying  and  those  that  are  content.  187 


 74.  DoJ/  FBI  distinguish  Brown  v.  Waddell  as  inapplicable  to  our  analysis.  DoJ/  FBI  maintain  that  clone  pagers  are  used  by  LEAs  to  intercept  content  messages  transmitted  to  digital  display  pagers,  and 
 that  is  why  those  pager  devices  cannot  be  authorized  under  pen  register  authority.  188  Instead,  DoJ/  FBI  claim,  because  digital  pagers  are  used  to  display  visual  messages,  [  t]  he  whole  point  of  using  a  clone 
 pager  is  to  obtain  the  content  of  those  messages.  189  For  dialed  digit  extraction,  LEAs  seek  those  post-cut-  through  digits  that  are  call-  identifying  information.  Similarly,  DoJ/  FBI  contend  that  the  pen  register 
 minimization  provision  in  18  U.  S.  C.  3121(  c)  does  not  preclude  LEAs  from  recording  and  decoding  post-cut-  through  digits  that  are  used  in  call  processing.  190  DoJ/  FBI  also  refute  CTIAs  contention  that  this 
 provision  was  intended  to  federalize  the  state  law  decision  in  People  v.  Bialostok  regarding  the  treatment  of  pen  registers  under  New  York  Criminal  Procedure  Law. 


 75.  DoJ/  FBI  ask  us  to  reject  the  alternatives  that  parties  have  suggested    serving  the  originating 
 183  DoJ/  FBI  Reply  Comments  at  14. 
 184  Id.  at  23  n9.  The  applicable  provision  is  codified  at  42  U.  S.  C.  103(  b)(  1)(  A). 
 185  DoJ/  FBI  Comments  at  50.  DoJ/  FBI  acknowledge  that  post-  cut-  through  digits  that  are  dialed  for  transactional 
 purposes  do  not  constitute  call-  identifying  information,  but  contend  that  post-  cut-  through  telephone  numbers  are  call-  identifying  information. 


 186  Id.  at  50-  51.  By  making  clear  its  decision  is  directed  solely  at  the  issue  of  capability,  not  that  of  legal 
 authorization,  the  Commission  can  ensure  that  carriers  do  not  mistakenly  regard  themselves  as  bound  by  the  Commissions  order  to  deliver  post-  cut-  through  digits.  If  a  court  determines  that  the  pen  register  statute  does  not 


 provide  sufficient  legal  authority  for  a  carrier  to  perform  dialed  digit  extraction,  the  Commissions  decision  would  not  preclude  such  a  determination. 
 187  Id.  at  51-  52  (stating  that  [  i]  f  the  Commission  wishes  to  do  so,  it  can  modify  the  Third  Report  and  Order  to  make 
 this  toggling  capability  a  condition  for  dialed  digit  extraction,  thereby  ensuring  that  carriers  can  execute  pen  register  orders  without  jeopardizing  the  privacy  and  security  of  communications  not  authorized  to  be  intercepted  if  a 


 particular  court  differs  with  the  government  regarding  the  legality  of  requiring  post-  cut-  through  digits  under  the  pen  register  statute.   
 188  DoJ/  FBI  Reply  Comments  at  27. 
 189  Id. 
 190  Id.  at  26.  The  statute  requires  LEAs  to  use  reasonable  available  technology  to  restrict  recording  and  decoding 
 to  the  dialing  and  signaling  information  used  in  call  processing. 
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 carrier  with  a  Title  III  warrant,  or  serving  the  terminating  carrier  with  a  pen  register  order    as  failing  to  meet  the  assistance  requirements  of  CALEA.  191  DoJ/  FBI  claim  that  these  methods  are  inconsistent  with 
 CALEA  because  they  do  not  ensure  that  LEAs  can  obtain  the  information  they  seek,  and  because  they  would  limit  LEAs  ability  to  obtain  information  before,  during,  or  immediately  after  the  communication 
 has  taken  place.  192  DoJ/  FBI  claim  that  were  we  to  accept  these  alternatives,  we  would  fail  to  give  meaning  to  the  requirement  in  Section  103(  a)(  2)  of  CALEA  that  every  carrier  must  be  capable  of 
 delivering  all  reasonably  available  call-  identifying  information  to  law  enforcement  contemporaneously  with  the  transmission  of  the  underlying  communication.  193 


 76.  With  respect  to  the  cost  of  implementing  a  dialed  digit  extraction  capability,  DoJ/  FBI  concede  that  this  capability  may  require  additional  hardware  for  certain  switch  platforms,  but  note  that  to 
 the  extent  these  hardware  add-  ons  are  attributed  to  capacity  requirements,  carriers  may  seek  reimbursement  under  the  capacity  provisions  of  DoJs  cost  recovery  regulations,  194  and  further  note  that 
 the  cost  of  modifying  switches  placed  into  service  before  1995  will  not  be  borne  by  carriers.  195  DoJ/  FBI  also  refute  claims  that  it  would  be  less  expensive  for  originating  carriers  to  deliver  post-  cut-  through  digits 
 to  LEAs  on  a  call  content  channel  and  to  have  the  LEAs  use  their  own  tone  decoders  to  extract  dialed  digits,  and  contend  that  this  option  should  be  rejected  for  privacy  reasons  because  LEAs  would  then 
 receive  all  of  the  content  of  the  call.  196 
 77.  Discussion.  As  an  initial  matter,  we  conclude  that  the  dialed  digit  extraction  capability  provides  call-  identifying  information.  Post-  cut-  through  digits  identify,  under  many  circumstances,  a 


 communications  destination  or  a  termination.  For  example,  a  party  may  dial  a  toll-  free  number  to  connect  to  a  long  distance  carrier  (e.  g.  1-  800-  CALL-  ATT)  and  subsequently  enter  another  phone  number 
 to  be  connected  to  a  party.  That  second  number  identifies  a  destination  because  it  is  a  party  or  place  to  which  a  call  is  being  made.  If  a  successful  connection  is  made,  that  second  number  also  identifies  a 
 termination  because  it  is  the  called  or  call-  receiving  party.  We  recognize  that  a  subject  may  also  dial  digits  that  are  not  call-  identifying  information    such  as  a  bank  account  or  social  security  number    but 
 note  that  many  post-  cut-  through  dialed  digits  simply  route  the  call  to  the  intended  party  and  are,  therefore,  unquestionably  call-  identifying  information  even  under  a  narrow  interpretation  of  that  term. 


 78.  We  disagree  with  those  commenters  who  contend  that  dialed  digits  are  not  call-  identifying  because  a  particular  carrier  does  not  use  that  information  as  part  of  its  call  processing.  Such  an  approach 
 would  recast  CALEAs  focus  from  the  interception  of  particular  communications  (which  may  pass  through  several  carriers)  to  the  operations  of  particular  carriers.  Call-  identifying  information  is  defined 
 in  terms  of  communication  generated  or  received  by  a  subscriber.  197  The  definition  says  nothing  about  whether  a  carrier  uses  the  dialed  digits  as  part  of  its  own  call  processing  nor  does  it  distinguish  how  the 
 carrier  handles  those  digits  within  its  network.  198  We  also  do  not  find  any  support  for  a  carrier-  based 
 191  Id.  at  24. 
 192  Id.  (citing  47  U.  S.  C.    1002(  a)(  2)  and  1006(  b)(  1)). 
 193  Id.  at  30. 
 194  We  note,  however,  that,  pursuant  to  the  FBIs  Final  Notice  of  Capacity,  telecommunications  carriers  were 
 required  to  file  statements  of  submission  by  September  8,  1998  to  apply  for  reimbursement  for  expenses  incurred  to  meet  the  FBIs  capacity  requirements.  See  Implementation  of  Section  104  of  the  Communications  Assistance  for 


 Law  Enforcement  Act,  Final  Notice  of  Capacity,  63  FR  12218  (1998).  195 
 DoJ/  FBI  Comments  at  40,  43.  196 
 DoJ/  FBI  Reply  Comments  at  23.  197 
 47  U.  S.  C.  1001(  2).  198 
 Post-  cut-  through  digits  may  be  handled  on  the  content  channel  as  opposed  to  the  call  data  channel.  See,  e.  g.,  AT&  T  Comments  at  6. 
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 distinction  in  the  legislative  history  of  the  Act.  199  Although  CALEA  considers  whether  a  carrier  can  reasonably  obtain  call-  identifying  information  (no  one  has  suggested,  for  example,  that  a  carrier  must 
 provide  a  LEA  information  about  a  call  it  has  not  carried),  it  does  not  turn  on  how  a  carrier  treats  that  information.  Therefore,  we  think  Verizon  is  correct  when  it  observes  that  dialed  digits  may  be  call-identifying 
 for  purposes  of  CALEA  even  if  they  are  not  so  from  a  carriers  perspective.  200  We  also  agree  with  DoJ/  FBI  that  limiting  call-  identifying  information  to  that  information  used  by  a  particular  carrier 
 to  process  calls  could  lead  to  absurd  results,  such  as  an  originating  carrier  declining  to  provide  a  LEA  with  the  seven  digits  dialed  after  the  area  code  in  a  non-  post-  cut-  through  long  distance  call  by  claiming 
 that  it  is  not  call-  identifying  information  from  that  carriers  perspective. 
 79.  Section  103(  a)  of  CALEA  requires  carriers  to  be  capable  of  expeditiously  isolating  wire  and  electronic  communications  and  call-  identifying  information  to  enable  LEAs  to  obtain  this  information 


 concurrently  with  their  transmission  from  the  subscribers  equipment,  facility,  or  service....  (in  the  case  of  the  interception  of  wire  and  electronic  communications)  201  or  before,  during,  or  immediately  after  the 
 transmission  of  a  wire  or  electronic  communication  (in  the  case  of  call-  identifying  information).  202  This  timing  requirement  leads  us  to  reject  the  alternative  of  having  a  LEA  serve  the  terminating  carrier  with  a 
 pen  register  order  to  obtain  those  dialed  digits  that  were  placed  once  a  call  has  been  cut-  through  from  the  originating  carrier.  Under  this  suggestion,  we  can  envision  a  scenario  in  which  a  suspect  could  connect  to 
 multiple  interexchange  carriers  before  dialing  the  final  phone  number.  In  that  case,  the  LEA  would  have  to  submit  pen  register  orders  to  each  interexchange  carrier  and,  because  the  identity  of  each  new  carrier 
 would  only  be  identified  by  one  immediately  before  it  in  the  call  history,  the  LEA  would  have  to  initiate  each  pen  register  sequentially.  This  process  would  not  simply  be  burdensome  on  LEAs;  it  is  inconsistent 
 with  Section  103(  a)  because  the  government  would  be  unable  to  obtain  call-  identifying  information  concurrently  with  its  transmission  to  or  from  a  subscriber.  Dialed  digit  extraction,  by  contrast,  does  not 
 suffer  from  this  time  lag  problem. 
 80.  We  also  find  that  dialed  digit  extraction  is  a  capability  that  is  reasonably  available  to  the  carrier  under  Section  103  of  CALEA.  203  Whether  a  carrier  does  or  does  not  process  or  use  these  digits  in 


 the  course  of  a  communication  strikes  us  as  much  less  important  for  purposes  of  this  analysis  than  whether  the  carrier  does  or  does  not  have  access  to  the  digits.  PCIA  and  other  commenters  note  that 
 dialed  digit  extraction  will  require  greater  use  of  tone  decoders  in  existing  switches  and  the  installation  of 


 199  CALEAs  legislative  history  describes  call-  identifying  information  as  information  that  describes 
 communication  placed  to,  or  received  by,  the  facility  or  service  that  is  the  subject  of  the  court  order  or  lawful  authorization.  H.  R.  Rep.  No.  103-  827,  103  rd  Cong.,  2d  Sess  (1994)  at  21.  We  do  not  think  the  legislative  historys 


 statement  that  CALEA  is  not  intended  to  guarantee  one-  stop  shopping  for  law  enforcement  alters  our  analysis.  See  H.  R.  Rep.  No.  103-  827,  103  rd  Cong.,  2d  Sess  (1994)  at  21.  This  discussion  relates  to  whether  a  communication 
 is  within  a  particular  carriers  control    and  not  whether  a  communication  is  call-  identifying  information  for  purposes  of  CALEA.  As  discussed,  infra,  post-  cut-  through  digits  are  available  at  a  carriers  Intercept  Access  Point, 
 which  suggests  that  these  communications  are  within  a  carriers  control. 
 200  Post-  cut-  through  dialed  digits  may  include  the  telephone  numbers  dialed  after  connecting  to  a  long-  distance 
 carrier,  in  which  case  they  are  call-  identifying  information  under  CALEA,  as  they  identify  the  destination  of  a  call.  But  these  digits  are  call  identifying  to  the  long  distance  company  to  which  the  call  is  delivered,  not  to  the  local 


 exchange  carrier  that  merely  passes  them  on  just  like  the  rest  of  the  content  of  the  call.  Information  is  not  call  identifying  when  the  carrier  involved  in  the  surveillance  does  not  use  it  for  that  purpose.  Verizon  Comments  at  4. 
 We  disagree  with  Verizon  insofar  that  it  would  have  us  hold  that  this  information  is  not  call-  identifying.  201 
 47  U.  S.  C.    1002(  a)(  1).  202 
 47  U.  S.  C.    1002(  a)(  2).  203 
 Id.  As  mentioned  in  n.  7,  supra,  CALEA  does  not  define  the  term  reasonably  available. 
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 tone  decoders  on  wireless  networks.  204  Because  the  deployment  of  tone  decoders  may  result  in  additional  hardware  costs,  and  may  require  carriers  to  engage  in  an  activity  they  do  not  currently  perform  (the 
 identification  of  post-  cut-  through  digits),  these  commenters  conclude  that  dialed  digit  extraction  is  not  reasonably  available.  205  We  disagree  with  this  approach,  which  suggests  that,  if  carriers  have  to  expend 
 funds  on  tone  decoders,  a  dialed  digit  extraction  capability  is  not  reasonably  available.  The  J-  Standard  defines  reasonably  available  as  information  present  at  an  Intercept  Access  Point  for  call  processing 
 purposes.  206  We  think  this  is  a  better  approach    something  is  available  if  it  is  accessible,  for  example  207    but  we  question  why  the  information  must  be  present  for  call  processing  purposes.  We 
 read  reasonably  as  a  qualifier;  if  information  is  only  accessible  by  significantly  modifying  a  network,  then  we  do  not  think  it  is  reasonably  available.  We  reject,  infra,  the  proposal  that  a  carrier  provide  a 
 LEA  with  the  content  channel  and  look  to  the  LEA  to  obtain  post-  cut-  through  dialed  digits  using  their  own  decoders.  When  post-  cut-  through  dialed  digits  are  present  at  a  carriers  Intercept  Access  Point,  we 
 find  that  they  can  be  made  available  to  a  LEA  without  significantly  modifying  the  carriers  network.  208  We  recognize  that  there  are  costs  associated  with  the  implementation  of  dialed  digit  extraction    in 
 particular,  the  installation  of  additional  tone  decoders    but  we  do  not  believe  that  these  costs  (especially  in  light  of  the  reimbursement  mechanisms)  make  the  capability  any  less  accessible  to  carriers.  Moreover, 
 because  the  Commission  must  take  into  consideration  cost  factors  when  it  sets  standards  under  Section  107(  b)  of  CALEA,  we  think  cost  concerns  are  better  addressed  as  part  of  our  Section  107(  b)  analysis,  as 
 opposed  to  our  inquiry  as  to  whether  information  is  reasonably  available  to  a  carrier. 
 81.  Although  we  have  found  that  dialed  digit  extraction  is  a  capability  that  meets  CALEAs  assistance  capability  requirements  under  Section  103  of  the  Act,  CALEA  requires  any  technical  standards 


 the  Commission  adopts  to  comply  with  the  provisions  of  Section  107(  b).  Section  107(  b)(  2)  requires  that  any  standards  we  require  must  protect  the  privacy  and  security  of  communications  not  authorized  to  be 
 intercepted.  209  Because  not  all  post-  cut-  through  digits  will  be  call-  identifying  information,  several  commenters  contend  that  this  provision  bars  us  from  requiring  dialed  digit  extraction.  We  disagree. 


 82.  As  DoJ/  FBI  note,  we  can  distinguish  between  providing  the  capability  to  perform  dialed  digit  extraction  and  deciding  whether  this  information  must  be  delivered  under  a  particular  legal  authority. 
 While  we  believe  it  is  clear  that  LEAs  may  receive  post-  cut-  through  dialed  digits  that  constitute  call-identifying  information,  there  currently  appears  to  be  no  technology  that  can  separate  those  post-  cut-through 
 dialed  digits  from  other  post-  cut-  through  dialed  digits  that  are  not  call-  identifying  (i.  e.,  that  are  call  content).  Moreover,  as  the  Court  noted  in  the  Remand  Decision,  although  the  government  contends 
 that  a  LEA  may  receive  all  post-  cut-  through  digits  with  a  pen  register  order,  subject  to  CALEAs 


 204  PCIA  Comments  at  8.  Cingular  Comments  at  7.  USTA  Comments  at  10.  In  wireline  calls,  a  tone  decoder  in  a 
 switch  is  used  to  identify  the  number  being  dialed  by  the  caller.  After  the  call  is  cut-  through,  the  decoder  is  available  for  another  call.  In  wireless  systems,  tone  decoders  are  not  typically  used  in  the  call  set-  up  process.  PCIA 


 Comments  at  8-  9.  205 
 See,  e.  g.,  USTA  Comments  at  10:  The  inclusion  of  post-  cut-  through  dialed  digits  in  the  J-  Standard  would  be  extremely  onerous  for  carriers  because  it  would  require  carriers  to  subvert  normal  call  processing  needs  and  buy 


 additional  equipment  solely  to  accommodate  surveillance  activities.  Such  a  result  would  not  be  cost  effective.  In  the  words  of  the  statute,  post  cut-  though  dialed  digits  are  not  reasonably  available  from  the  originating  carrier 
 (emphasis  in  original).  206 
 J-  STD-  025    4.2.1.  207 
 Websters  New  World  Dictionary,  College  ed.  (1962.)  at  101.  208 
 Although  commenters  discuss  the  hardware  modifications  that  will  be  required  to  collect  this  information    i.  e.  the  installation  of  tone  decoders    none  argue  that  the  basic  structure  of  the  network  will  not  allow  for  the  provision 


 of  a  dialed  digit  extraction  capability.  See  also  Third  R&  O,  supra  n.  2,  at    28-  31.  209 
 47  U.  S.  C.    1006(  b)(  2). 
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 requirements  that  the  LEA  uses  technology  reasonably  available  to  it  to  avoid  processing  digits  that  are  content,  no  court  has  yet  considered  that  contention  and  it  may  be  that  a  Title  III  warrant  is  required  to 
 receive  all  post-  cut-  through  digits.  210  We  strongly  disagree  with  CTIAs  contention  that  the  Commission  must  decide  the  applicability  of  the  pen  register  statute  to  post  cut  through  dialed  digits  so  that  a 
 subsequent  court  can  be  assured  that  the  law  was  applied  and  privacy  considered  in  the  decision-  making  process.  211  The  Court  took  issue  with  the  Commission  precisely  because  the  Commission  made  such  a 
 conclusion.  Although  the  Commission  assumed  in  the  Third  R&  O  that  a  pen  register  order  would  always  be  sufficient  for  a  LEA  to  obtain  post-  cut-  through  dialed  digits  in  all  cases,  the  Court  observed  that  [  n]  o 
 court  has  yet  considered  that  contention.  212  We  think  it  is  inadvisable  for  us  to  make  such  a  blanket  conclusion  and  we  decline  to  do  so  here. 


 83.  In  a  similar  vein,  we  decline  to  decide  whether  a  Title  III  warrant  is  an  alternative  to  dialed  digit  extraction.  Because  post-  cut-  through  digits  include  call  identifying  information,  LEAs  should  be 
 able  to  obtain  this  information  under  CALEA  so  long  as  they  have  a  valid  legal  instrument.  Although  a  Title  III  warrant    which  would  give  a  LEA  call  content    may  be  one  such  valid  instrument,  it  is  not  up 
 to  us  to  decide  whether  it  is  the  only  one  that  could  be  used.  Were  we  to  conclude  that  a  Title  III  warrant  represents  an  alternative  means  of  accomplishing  the  dialed  digit  extraction  capability  we  would 
 necessarily  have  to  assume  that  a  pen  register  does  not  entitle  a  LEA  to  dialed  digit  extraction.  Such  a  decision  would  improperly  usurp  the  role  of  the  courts  to  decide  what  legal  instrument  is  necessary  to 
 obtain  the  dialed  digit  information.  DoJ/  FBI  contend  that  by  enacting  the  provision  found  in  18  U.  S.  C.  3121(  c)  that  requires  LEAs  to  use  technology  reasonably  available  to  them  to  limit  recording  and 
 decoding  to  dialing  and  signaling  information  used  in  call  processing,  Congress  understood  the  scope  of  a  pen  register  to  include  post-  cut-  through  dialed  digits  in  some  cases.  213  We  do  not  know  whether  this  is 
 true,  and  it  may  be  that  a  Title  III  warrant  will  be  a  LEAs  only  alternative  for  obtaining  post-  cut-  through  dialed  digits  in  some  cases.  214  We  conclude,  however,  that  that  is  a  legal  question  that  should  be  left  to  a 
 court  that  is  considering  a  specific  surveillance  request.  215 
 84.  Our  approach  is  similar  to  the  approach  that  we  employed  with  respect  to  a  packet-  mode  communications  capability.  Our  packet-  mode  approach  was  upheld  by  the  Court  in  the  Remand  Decision, 


 and  we  noted  that  fact  in  the  Order  in  this  proceeding: 
 At  the  outset,  we  note  that  the  Court  affirmed  our  findings  in  the  Third  R&  O  not  to  remove  the  packet-  mode  capability  that  was  included  in  the  industry  established  safe 


 harbor  J-  STD-  025.  As  we  discussed  above,  the  interim  standard  does  not  specify  the  call  identifying  information  for  packet  communications.  As  a  result,  both  call-  identifying 
 information  and  call  content  could  be  provided  for  electronic  surveillance  under  the  interim  standard.  The  Court  noted  that  nothing  in  our  treatment  of  packet-  mode 
 communications  requires  carriers  to  turn  over  content  information  to  LEAs  absent  lawful 


 210  227  F.  3d  at  462. 
 211  CTIA  Reply  Comments  at  13. 
 212  Remand  Decision,  227  F.  3d  at  462. 
 213  DoJ/  FBI  Ex  Parte  Presentation,  CC  Docket  97-  213,  filed  April  18,  2001,  at  2. 
 214  Similarly,  we  do  not  know  whether  changes  to  wiretap  law  embodied  in  the  USA  PATRIOT  Act  will  affect  the 
 scope  and  nature  of  pen  registers  and  trap  and  trace  device  warrants  issued  by  the  courts.  215 
 We  reject  AT&  Ts  suggestion  that  we  use  the  structure  of  CALEA  (which  gives  the  Commission  authority  to  resolve  certain  standards  issues)  to  adopt  a  working  assumption  that  courts  will  conclude  that  a  Title  III  order  is 


 necessary  for  LEAs  to  obtain  post-  cut-  thorough  dialed  digits.  AT&  T  Comments  at  9-  10.  Again,  as  noted  above,  it  is  not  for  the  Commission  to  decide  the  particular  legal  authority  necessary  to  obtain  post-  cut-  through  dialed  digits. 
 Rather,  the  Commission  is  to  decide  whether  such  capability  is  required  under  CALEA. 
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 authorization,  and  therefore  carriers  have  no  reason  to  believe  that  they  will  be  forced  by  our  packet-  mode  decision  to  submit  unauthorized  information  to  LEAs.  We  agree  with 
 DoJ/  FBI  that  while  parties  may  dispute  whether  a  carrier  may  supply  to  a  LEA  the  entire  packet  (i.  e.,  content  and  call-  identifying  information)  in  response  to  a  pen  register  order, 
 there  appears  to  be  no  dispute  that  a  carrier  must  supply  the  entire  packet  in  response  to  a  Title  III  order.  Thus,  the  interim  standard  for  the  packet  capability  appears  to  be 
 appropriate  at  least  in  some  cases,  even  though  it  does  not  include  a  standard  for  separating  call-  identifying  information  from  the  content  of  the  packet.  [footnotes 
 omitted]  216 
 85.  We  find  that  the  situation  with  respect  to  a  dialed  digit  extraction  capability  parallels  the  situation  with  respect  to  a  packet-  mode  communications  capability.  In  each  instance,  it  is  clear  that  LEAs 


 possessing  a  Title  III  order  may  receive  content  information,  but  it  is  unclear  whether  LEAs  possessing  only  a  pen  register  warrant  may  receive  such  information.  As  with  any  other  information  provided  by  a 
 CALEA  capability,  a  LEA  must  obtain  the  proper  legal  authority  from  a  court.  217  If  a  LEA  thinks  a  pen  register  is  the  proper  authority  to  obtain  information  under  the  dialed  digit  extraction  capability,  then  it 
 must  convince  the  court  of  this  fact.  218 
 86.  We  disagree  with  those  commenters  that  suggest  that  we  should  not  decide  whether  dialed  digit  extraction  is  a  capability  that  is  required  under  CALEA  until  after  we  know  what  the  proper  legal 


 instrument  is  for  a  LEA  to  obtain  this  information.  Similarly,  we  cannot  agree  with  the  contention  that,  because  post-  cut-  through  dialed  digits  are  sometimes  not  call-  identifying,  carriers  should  not  be  required 
 to  have  the  capability  to  provide  to  LEAs  post-  cut-  through  digits.  Because  dialed  digit  extraction  includes  call-  identifying  information  and  we  find  that  it  otherwise  meets  the  assistance  capability 
 requirements  under  Section  103,  it  should  be  included  in  our  CALEA  standards. 
 87.  We  do  not  find  the  cases  cited  by  commenters  to  be  relevant  to  our  consideration  of  dialed  digit  extraction.  Brown  v.  Waddell  does  not  preclude  LEAs  from  obtaining  post-  cut-  through  dialed  digits  with 


 a  pen  register  order  because  that  decision  pertains  to  digital  display  pagers  whose  messages  are  inherently  content.  By  contrast,  dialed  digit  extraction  includes  call-  identifying  information.  Brown  does  not 
 address  whether  LEAs  are  able  to  obtain  a  mix  of  content  and  call-  identifying  information  under  a  pen  register.  We  find  no  support  in  the  record  for  CTIAs  contention  that  the  pen  register  minimization 
 provision  in  18  U.  S.  C.  3121(  c)  makes  it  unlawful  to  use  a  pen  register  that  also  delivers  call  content    either  directly,  or  through  codification  of  New  York  State  Law.  Instead,  a  plain  reading  of  the  legislative 
 history  suggests  that  Congress  thought  that  LEAs  would  sometimes  obtain  call  content  and  that  it  placed  the  burden  on  LEAs  (as  opposed  to  carriers)  to  use  technology  to  restrict  the  information  that  the  pen 
 register  captures  to  dialed  digits  that  are  call-  identifying.  219 


 216  See  Order,  supra  n.  17,  at    13. 
 217  We  agree  with  WorldCom  on  this  point  and  reiterate  that  LEAs  must  always  obtain  a  court  authorization  or  other 
 valid  legal  instrument  before  a  carrier  can  be  required  to  provide  information  as  part  of  a  CALEA  capability.  See  also  Section  103(  a)(  4)(  A),  47  U.  S.  C.    1002(  a)(  4)(  A)  (requiring  carriers  to  facilitate  interceptions  in  a  manner  that 


 protects  the  privacy  of  communications  not  authorized  to  be  intercepted.)  In  each  case,  a  court  will  have  to  consider  what  communications  are  authorized  to  be  intercepted  and  what  is  the  appropriate  legal  instrument  for  a 
 LEAs  surveillance.  218 
 See  Remand  Decision,  227  F.  3d  at  465-  66  (discussing  how  the  Commissions  treatment  of  the  packet  mode  capability  did  not  attempt  to  alter  the  evidentiary  standard  nor  compel  carriers  to  turn  over  call  content  to  LEAs 


 absent  lawful  authorization).  219 
 See  H.  R.  Rep.  No.  103-  827,  103  rd  Cong.,  2d  Sess  (1994)  at  32  (stating  that  government  agencies  installing  pen  registers  use,  when  reasonably  available,  technology  that  restricts  the  information  captured  by  such  device  to  the 
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 88.  Because  the  standards  we  adopt  must  protect  the  privacy  and  security  of  communications  not  authorized  to  be  intercepted,  we  reject  the  proposal  to  allow  a  LEA  to  extract  dialed  digits  on  content 
 channels  using  their  own  decoders.  This  alternative  is  not  acceptable  because  it  would  require  the  LEA  in  every  case,  no  matter  the  level  of  authorization  involved,  to  obtain  the  entire  content  when  a  less  intrusive 
 alternative  (dialed  digit  extraction,  whereby  carriers  separate  out  tone  information)  is  available.  This  alternative  would  also  shift  from  carriers  to  LEAs  responsibility  for  ensuring  that  interceptions  are 
 conducted  in  a  way  that  protects  the  privacy  and  security  of  communications  not  authorized  for  interception  as  much  as  possible.  Such  a  result  would  be  inconsistent  with  Section  103(  a)(  4)  of  CALEA, 
 which  requires  carriers  to  protect  the  privacy  and  security  of  communications  and  call-  identifying  information  not  authorized  to  be  intercepted. 


 89.  By  concluding  that  LEAs  may  obtain  dialed  digit  extraction  information  only  with  the  appropriate  legal  instrument,  we  take  into  account  the  privacy  considerations  in  Section  107(  b)(  2).  Just 
 because  we  determine  that  a  dialed  digit  extraction  capability  is  required  under  CALEA  does  not  mean  that  LEAs  may  avail  themselves  of  this  capability  in  all  circumstances.  Instead,  a  LEA  must  continue  to 
 seek  and  obtain  from  an  appropriate  court  the  necessary  authorization  in  order  to  conduct  surveillance  operations.  The  specific  legal  instrument,  which  will  be  based  on  the  facts  particular  to  each  situation, 
 will  frame  what  communications  are  authorized  to  be  intercepted.  Thus,  if  a  court  determines  that  a  pen  register  is  insufficient  to  obtain  post-  cut-  through  digits  because  of  content  information  contained  in  the 
 communication,  the  court  will  have  determined  that  a  LEA  is  not  authorized  to  obtain  the  information  obtained  by  dialed  digit  extraction  and  a  carrier  must  be  able  to  exclude  dialed  digit  extraction  when  it  is 
 presented  with  that  pen  register  order.  If,  on  the  other  hand,  a  court  determines  that  a  pen  register  order  is  sufficient  for  a  LEA  to  obtain  dialed  digit  extraction  information  in  a  particular  case,  then  the  carrier 
 would  be  expected  to  comply  with  such  an  order.  By  providing  for  a  dialed  digit  extraction  capability  but  not  assuming  that  it  will  be  legally  available  to  LEAs  in  all  circumstances,  we  will  protect  the  privacy  of 
 the  communication  that  a  LEA  is  not  authorized  to  obtain.  In  doing  so,  however,  we  will  not  prejudge  the  role  of  a  court  to  frame  what,  in  a  particular  situation,  constitutes  the  exact  communication  that  a  LEA  is 
 authorized  and  not  authorized  to  obtain.  220 
 90.  In  order  to  respond  to  the  appropriate  legal  authority,  a  carrier  must  have  the  ability  to  turn  on  and  off  the  dialed  digit  extraction  capability.  DoJ/  FBI  note  that  many  of  the  software  upgrades  they 


 have  negotiated  include  the  capability  for  carriers  to  toggle  individual  punch  list  capabilities  on  or  off,  and  identify  the  toggle  feature  as  a  means  of  adding  dialed  digit  extraction  as  a  network  capability,  but 
 allowing  a  carrier  not  to  use  that  capability  (i.  e.,  turn  it  off)  if  the  carrier  has  reservations  about  the  legal  basis  for  providing  all  post-  cut-  through  digits.  221  We  agree  that  a  toggle  feature  for  dialed  digit  extraction 


 dialing  or  signaling  information  necessary  to  direct  or  process  a  call,  excluding  any  further  communication  conducted  through  the  use  of  dialed  digits  that  would  otherwise  be  captured). 
 220  We  do  not  discount  the  responsibility  of  carriers  to  ensure  that  they  facilitate  authorized  communications 
 interceptions  in  a  manner  that  protects  the  privacy  and  security  of  communications  not  authorized  for  interception.  See    88,  supra,  and  47  U.  S.  C.    1002(  a)(  4).  The  burden  is  clearly  on  a  LEA  to  convince  a  court  that  a  pen  register 


 is  a  sufficient  legal  instrument  to  obtain  dialed  digit  extraction  information.  See  n.  217,  supra,  and  accompanying  text.  A  carrier  that  is  not  convinced  that  a  pen  register  order  is  a  valid  legal  instrument  to  obtain  dialed  digit 
 extraction  may  decide  not  to  provide  this  information  to  a  LEA    just  as  a  carrier  that  is  presented  with  a  pen  register  order  may  conclude  that  it  is  not  a  valid  legal  instrument  for  it  to  provide  a  call  content  channel  that  has  been 
 requested  by  a  LEA.  221 
 Although  a  carrier  must  make  information  from  dialed  digit  extraction  available  to  a  LEA  upon  presentation  of  a  valid  legal  instrument,  we  do  not  mean  to  suggest  that,  by  analogy,  the  provision  of  selected  dialed  digits  (i.  e.  those 


 that  do  not  constitute  call-  identifying  information)  is  a  capability  that  is  reasonably  available  to  carriers.  Were  a  court  to  determine  that  a  LEA  is  authorized  to  obtain  only  those  dialed  digits  that  do  not  constitute  call-  identifying 
 information  under  a  particular  pen  register  order,  a  carrier  would  have  to  decide  if  it  could  provide  the  requested  information  consistent  with  its  duty  under  CALEA  to  protect  the  privacy  of  communications  not  authorized  to  be 
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 is  necessary  in  order  to  protect  privacy  interests  under  certain  circumstances,  without  disrupting  the  carrier's  ability  to  provide  other  punch  list  capabilities  included  in  the  same  software.  We  therefore 
 conclude  that  carriers  must  have  the  equipment  and  software  to  support  a  dialed  digit  extraction  capability  with  a  toggle  feature.  Where  such  a  toggle  feature  will  not  be  available  from  a  carrier's  vendor  by  the 
 compliance  deadline,  that  carrier  may  file  a  petition  with  the  Commission  under  Section  107(  c),  requesting  an  extension  of  the  compliance  deadline.  222 


 91.  As  a  final  matter,  we  turn  to  the  cost  considerations  under  Section  107(  b)(  1)  and  (3)  of  CALEA.  First,  we  must  find  that  dialed  digit  extraction  meets  CALEAs  capability  requirements  by 
 cost-  effective  methods.  223  Because  there  are  no  alternative  means  of  accomplishing  this  objective,  224  we  cannot  engage  in  the  type  of  cost-  comparison  analysis  discussed  in  Section  III  B,  supra.  However,  we 
 note  that  several  mechanisms    including  the  FBI  reimbursement  program    do  serve  to  minimize  the  cost  of  providing  this  capability.  In  the  Third  R&  O,  the  Commission  found  that  five  major  telecommunications 
 manufacturers  anticipated  total  revenues  from  carriers  purchasing  a  dialed  digit  extraction  capability  of  $121  million.  225  Further,  the  FBIs  buyout  and  flexible  deployment  programs,  coupled  with  manufacturers 
 incorporating  all  punch  list  capabilities  into  one  software  upgrade,  could  lessen  software  costs  dramatically.  We  also  note  that,  to  the  extent  that  a  carrier  requires  additional  DTMF  tone  extractors  and  decoders  to 
 perform  two  or  more  simultaneous  wiretaps,  the  carrier  may  be  reimbursed  for  expending  funds  to  meet  these  capacity  requirements.  226  Further,  as  noted  in  paragraph  60,  supra,  because  a  single  software  upgrade 
 incorporating  all  six  punch  list  capabilities  has  already  been  undertaken  by  five  manufacturers,  including  or  not  including  a  dialed  digit  extraction  capability  may  not  significantly  change  carriers  costs.  Because  these 
 factors  serve  to  minimize  the  cost  of  implementing  dialed  digit  extraction,  we  conclude  that  dialed  digit  extraction  meets  CALEAs  capability  requirements  by  cost-  effective  methods. 


 92.  We  also  find  that  authorizing  a  dialed  digit  extraction  capability  is  unlikely  to  significantly  affect  residential  ratepayers.  The  factors  we  previously  identified  as  minimizing  the  cost  for  residential  ratepayers   
 including  the  FBI  buyout  and  flexible  deployment  programs    will  be  applicable  to  dialed  digit  extraction.  Moreover,  we  note  that  carriers  will  be  able  to  spread  costs  across  a  large  ratepayer  base  and  there  is  no 
 indication  that  the  costs  of  dialed  digit  extraction  will  be  disproportionately  borne  by  residential  (versus  other  classes  of)  ratepayers.  Even  if  wireline  carriers  were  forced  to  bear  costs  as  great  as  the  $60  million  for  this 
 capability  estimated  by  five  major  telecommunications  manufacturers  227  and  these  costs  were  passed  on  to  residential  ratepayers  as  a  one-  time  charge,  the  charge  per  residential  ratepayer  would  average  less  than  one 
 dollar.  228  Alternatively,  a  $60  million  charge  to  wireline  carriers,  if  converted  to  a  rate  increase  to  almost  100 
 intercepted.  If  it  concluded  that  it  could  not,  the  carrier  might  decide  not  to  provide  a  LEA  with  dialed  digit  extraction  information  in  response  to  such  an  order. 
 222  Alternatively,  if  a  carrier  believes  that  deploying  a  dialed  digit  extraction  capability  with  a  toggle  feature  is  not 
 reasonably  achievable,  the  carrier  may  file  a  petition  with  the  Commission  under  Section  109(  b),  requesting  an  exemption  from  deployment  of  this  capability.  47  U.  S.  C.    1006(  b). 


 223  47  U.  S.  C.    1006(  b). 
 224  See  supra,    79  (rejecting  the  alternative  of  having  a  LEA  serve  the  terminating  carrier  with  a  pen  register  due  to 
 time  lag  problems),    83  (declining  to  find  that  a  Title  III  warrant  is  a  sufficient  alternative  to  a  pen  register  order),  and    88  (rejecting  the  alternative  of  having  a  LEA  use  its  own  decoders  to  extract  dialed  digits  on  call  content 


 channels  due  to  privacy  concerns).  225 
 Third  R&  O,  supra  n.  2,  at  Appendix  B.  Figure  is  for  wireline  and  wireless  carriers.  226 
 However,  as  discussed  in  n.  194,  supra,  there  was  a  carrier  filing  deadline  of  September  8,  1998  to  qualify  for  capacity  reimbursements. 


 227  Third  R&  O,  supra  n.  2,  at  Appendix  B.  Figure  is  for  wireline  carriers  only. 
 228  Based  on  96-  98  million  U.  S.  households  with  wireline  telephone  service,  the  cost  would  average  61-  63  cents  per 
 subscribing  household.  See  n.  153,  supra. 
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 million  residential  ratepayers,  would  average  only  1-  3  cents  per  month  per  ratepayer.  229 
 93.  Accordingly,  in  view  of  the  fact  that  we  conclude  that  a  dialed  digit  extraction  electronic  surveillance  capability  constitutes  call-  identifying  information  and  that  authorizing  a  dialed  digit 


 extraction  electronic  surveillance  capability  would  be  in  conformance  with  Section  107(  b)  of  CALEA,  we  find  that  a  dialed  digit  extraction  capability  is  a  technical  requirement  that  meets  the  assistance  capability 
 requirements  of  Section  103  of  CALEA. 
 D.  Party  Hold/  Join/  Drop  Messages 
 94.  This  capability  would  permit  the  LEA  to  receive  from  the  telecommunications  carrier  messages  identifying  the  parties  to  a  conference  call  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.  As  discussed  in  paragraph  nine,  supra,  the  Court  found  that  the  Third  R&  O  did  not  adequately  explain  the  basis  for  its  conclusion  that  this 
 capability  constituted  call-  identifying  information  or  how  granting  LEAs  this  capability  would  satisfy  CALEAs  requirements  by  cost-  effective  methods. 


 95.  Comments.  CDT  states  that  party  hold/  join/  drop  messages  do  not  identify  calls,  but  rather  identify  callers.  CDT  further  states  that  the  Third  R&  O  ignored  the  plain  meaning  of  CALEA  in  its 
 conclusion  that  these  messages  identify  the  temporary  origin,  temporary  termination  or  re-  direction  of  a  communication.  CDT  contends  that  the  concepts  of  temporary  origin  and  termination  do  not  appear  in 
 the  CALEA  statute,  and  that  a  call  does  not  terminate  or  originate  when  a  party  drops  off,  joins,  or  is  placed  on  hold  with  respect  to  a  continuing  phone  call.  230  CTIA  states  that  multiple  definitions  of 
 origin  and  termination  makes  a  mockery  of  statutory  interpretation.  In  addition,  CTIA  contends  that  party  information  has  never  been  available  to  LEAs  because  such  information  does  not  identify  a  calls 
 origin  or  termination.  CTIA  further  contends  that  it  is  unclear  why  this  information  would  be  necessary  in  the  case  of  a  pen  register  order,  where  this  signaling  information  would  prove  meaningless.  CTIA 
 asserts  that  only  in  the  case  of  a  full  Title  III  intercept,  where  LEAs  desire  to  know  who  is  talking  or  connected  at  any  given  time,  is  this  capability  necessary.  231 


 96.  USTA  argues  that  J-  STD-  025  already  provides  information  similar  to  party  hold/  join/  drop  messages.  Specifically,  USTA  states  that  J-  STD-  025  provides  an  origination  message,  which  indicates 
 that  the  subject  has  placed  an  outgoing  call  and  identifies  the  destination  directory  number;  a  termination  message,  which  indicates  that  the  subject  has  an  incoming  call  and  identifies  the  directory  number;  an 
 answer  message,  which  identifies  the  directory  number  where  the  call  is  answered  in  cases  when  it  is  not  the  normal  destination  (e.  g.,  call  pickup  or  call  forwarding);  and,  a  change  message,  which  reports  any 
 changes  in  call  identities.  232 
 97.  DoJ/  FBI  state  that  party  hold/  join/  drop  information  identifies  direction  or  destination  of  communications  whenever  a  party  to  a  multi-  leg  call  (i.  e.,  a  call  involving  three  or  more  parties  where 


 at  least  two  parties  are  not  directly  connected  to  one  another  during  the  entirety  of  the  call)  is  joined, 
 229  Specifically,  a  $60  million  charge  to  carriers,  converted  to  a  rate  increase  to  96-  98  million  residential  ratepayers, 
 would  average  2.9-  3.0  cents  per  month  per  ratepayer  using  a  relatively  rapid  amortization  period  of  two  years  and  a  relatively  high  discount  rate  of  12%;  and  would  average  1.  2  cents  per  month  per  ratepayer  using  a  relatively  slow 


 amortization  period  of  5  years  and  a  relatively  low  discount  rate  of  6%. 
 230  CDT  Comments  at  9. 
 231  CTIA  Comments  at  15-  16. 
 232  USTA  Comments  at  7-  8. 
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 dropped,  or  placed  on  hold.  DoJ/  FBI  concede  that  in  the  past,  party  hold  and  drop  information  was  not  available  directly  and  was  inferred  by  indirect  means,  but  argue  that  call-  identifying  information  includes 
 this  information.  233  In  reply  comments,  DoJ/  FBI  contend  that  commenters  who  suggest  that  party  hold/  join/  drop  information  is  not  call-  identifying  information  rely  primarily  on  the  theory  that  call-identifying 
 information  does  not  include  information  about  changes  in  the  various  legs  of  a  multi-  party  call.  However,  DoJ/  FBI  maintain  that  CALEAs  definition  of  call-  identifying  information  covers  all 
 dialing  and  signaling  information  that  identifies  the  origin,  direction,  destination,  or  termination  of  each  communication  generated  or  received  by  a  subscriber.  DoJ/  FBI  note  that  a  multi-  leg  call  can  involve 
 more  than  one  communication    for  example,  when  one  party  toggles  back  and  forth  between  two  other  parties,  speaking  first  to  one  and  then  to  the  other.  DoJ/  FBI  contend  that  a  carrier  must  be  capable  of 
 notifying  LEAs  about  changes  in  party  status  that  affect  the  path  of  the  subsequent  communications  and  assert  that  J-  STD-  025s  Change  message  reports  only  changes  in  overall  call  identity,  and  not  changes 
 in  the  identity  of  each  leg  of  a  multi-  leg  call.  DoJ/  FBI  further  contend  that  CTIA  is  incorrect  in  suggesting  that  party  join/  hold/  drop  information  is  superfluous  in  Title  III  cases  because  LEAs  can 
 determine  the  parties  in  a  multi-  leg  call  simply  by  listening  to  their  voices.  DoJ/  FBI  assert  that  this  suggestion  falls  short,  for  example,  when  parties  are  listening  without  speaking,  or  when  two  parties  have 
 sufficiently  similar  voices  to  raise  a  reasonable  doubt  in  the  mind  of  a  jury.  234 
 98.  Discussion.  We  find  that  authorizing  a  party  hold/  join/  drop  message  electronic  surveillance  capability  would  be  in  conformance  with  Sections  102(  2)  and  103(  a)  of  CALEA.  The  changes  in  origin(  s) 


 and  termination(  s)  as  parties  join  a  call,  are  placed  on  and  off  hold,  and  then  drop  off  the  call  were  discussed  in  paragraph  44,  supra,  and  reviewed  in  detail  in  J-  STD-  025,  Section  D.  7.1,  Call  Waiting  and 
 Recall  with  a  Single  Call  Identity.  We  conclude  that,  under  our  revised  definitions  of  the  components  of  call-  identifying  information,  party  hold/  join/  drop  information  is  call-  identifying  information  because  it 
 identifies  changes  in  the  origin(  s)  and  termination(  s)  of  each  communication  generated  or  received  by  the  subject.  Further,  by  isolating  call-  identifying  information  in  this  manner,  the  LEA  may  more  readily  avoid 
 monitoring  the  communications  of  third  parties  who  are  not  privy  to  the  communications  involving  the  subject,  thereby  furthering  privacy  considerations.  In  the  Third  R&  O,  the  Commission  defined  call-identifying 
 information  to  be  reasonably  available  to  an  originating  carrier  if  such  information  is  present  at  an  [Intercept  Access  Point]  and  can  be  made  available  without  the  carrier  being  unduly 
 burdened  with  network  modifications.  235  The  J-  Standard  acknowledges  that  the  network  must  recognize  and  process  party  hold/  join/  drop  functions  as  part  of  its  basic  operation.  Thus,  we  conclude  that  party 
 hold/  join/  drop  information  is  not  only  present  at  an  Intercept  Access  Point  but,  because  it  is  already  being  used  by  the  carrier,  satisfies  the  definition  of  reasonably  available  in  the  original  version  of  the  J-Standard. 
 236  In  short,  by  any  reasonable  standard,  this  information  is  reasonably  available. 


 99.  Additionally,  we  note  that  commenters  have  presented  no  alternative  ways  of  obtaining  all  the  information  encompassed  by  this  capability.  While  the  J-  Standard  provides  some  of  the  information 
 encompassed  by  this  capability,  the  J-  Standard  does  not  provide  all  such  information,  including  separate  call  identities  for  each  leg  of  multi-  leg  calls. 


 100.  We  now  turn  to  the  cost  considerations  under  Section  107(  b)(  1)  and  (3)  of  CALEA.  First,  we  must  find  that  party  hold/  join/  drop  meets  CALEAs  capability  requirements  by  cost-  effective 
 methods.  237  Because  there  are  no  alternative  means  of  accomplishing  this  objective,  we  cannot  engage 


 233  DoJ/  FBI  Comments  at  27-  28. 
 234  DoJ/  FBI  Reply  Comments  at  16-  18. 
 235  Third  R&  O,  supra  n.  2,  at    28-  29.  See  also  supra  n.  206  and  accompanying  text. 
 236  J-  STD-  025    4.2.1. 
 237  47  U.  S.  C.    1006(  b). 
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 in  the  type  of  cost-  comparison  analysis  discussed  in  Section  III  B,  supra.  However,  we  note  that  several  mechanisms    including  the  FBI  reimbursement  program    do  serve  to  minimize  the  cost  of  providing 
 this  capability.  In  the  Third  R&  O,  we  found  that  five  major  telecommunications  manufacturers  anticipated  total  revenues  from  carriers  purchasing  a  party  hold/  join/  drop  message  capability  of  $64  million.  238  Further, 
 as  noted  above,  the  FBIs  buyout  and  flexible  deployment  programs,  coupled  with  five  manufacturers  incorporating  all  punch  list  capabilities  into  one  software  upgrade,  will  lessen  software  costs  significantly, 
 and  including  or  not  including  a  party  hold/  join/  drop  message  capability  may  not  significantly  change  carriers  costs.  For  these  reasons,  we  find  that  the  cost  to  carriers  of  implementing  this  capability  would  be 
 minimized  and  that  requiring  the  capability  would  be  cost-  effective. 
 101.  We  also  find  that  authorizing  a  party  hold/  join/  drop  capability  is  unlikely  to  significantly  affect  residential  ratepayers.  The  factors  we  previously  identified  as  minimizing  the  cost  for  residential 


 ratepayers    including  the  FBI  buyout  and  flexible  deployment  programs    will  be  applicable  to  party  hold/  join/  drop.  Moreover,  we  note  that  carriers  will  be  able  to  spread  costs  across  a  large  ratepayer  base  and 
 there  is  no  indication  that  the  costs  of  party  hold/  join/  drop  will  be  disproportionately  borne  by  residential  ratepayers.  Even  if  wireline  carriers  were  forced  to  bear  costs  as  great  as  the  $22  million  for  this  capability 
 estimated  by  five  major  telecommunications  manufacturers  239  and  these  costs  were  passed  on  to  residential  ratepayers  as  a  one-  time  charge,  the  charge  per  residential  ratepayer  would  average  much  less  than  one 
 dollar.  240  Alternatively,  a  $22  million  charge  to  wireline  carriers,  if  converted  to  a  rate  increase  to  almost  100  million  residential  ratepayers,  would  average  only  about  a  penny  per  month  per  ratepayer.  241 


 102.  Finally,  we  find  that  authorizing  a  party  hold/  join/  drop  electronic  surveillance  capability  would  be  in  conformance  with  the  second  prong  of  Section  107(  b)  of  CALEA.  242  We  see  no  significant 
 privacy  issues  arising  from  grant  to  LEAs  of  a  party  hold/  join/  drop  capability,  no  party  to  this  proceeding  challenged  the  Third  R&  Os  decision  with  respect  to  that  capability  on  privacy  grounds,  and  the  Court  did 
 not  cite  privacy  as  a  basis  for  remanding  to  the  Commission  the  Third  R&  Os  decision  with  respect  to  that  capability.  Therefore,  we  do  not  address  this  factor  further. 


 103.  Accordingly,  in  view  of  the  fact  that  we  conclude  that  party  hold/  join/  drop  information  constitutes  call-  identifying  information  and  that  authorizing  a  party  hold/  join/  drop  electronic  surveillance 
 capability  would  be  in  conformance  with  Section  107(  b)  of  CALEA,  we  find  that  a  party  hold/  join/  drop  capability  is  a  technical  requirement  that  meets  the  assistance  capability  requirements  of  Section  103  of 
 CALEA. 
 E.  Subject-  Initiated  Dialing  and  Signaling  Information 
 104.  This  capability  would  permit  the  LEA  to  be  informed  when  a  subject  sends  signals  or  digits  to  the  network.  This  capability  would  require  the  telecommunications  carrier  to  deliver  a  message  to  the 


 LEA,  for  each  communication  initiated  by  the  subject,  informing  the  LEA  whenever  the  subject  has  invoked  a  feature  during  a  call,  including  features  that  would  place  a  party  on  hold,  transfer  a  call,  forward  a  call,  or 


 238  Third  R&  O,  supra  n.  2,  at  Appendix  B.  Figure  is  for  wireline  and  wireless  carriers. 
 239  Id.  Figure  is  for  wireline  carriers  only. 
 240  Based  on  96-  98  million  U.  S.  households  with  wireline  telephone  service,  the  cost  would  average  22-  23  cents  per 
 subscribing  household.  See  n.  153,  supra.  241 
 Specifically,  a  $22  million  charge  to  carriers,  converted  to  a  rate  increase  to  96-  98  million  residential  ratepayers,  would  average  1.0-  1.1  cents  per  month  per  ratepayer  using  a  relatively  rapid  amortization  period  of  two  years  and  a 


 relatively  high  discount  rate  of  12%;  and  would  average  0.  4  cents  per  month  per  ratepayer  using  a  relatively  slow  amortization  period  of  5  years  and  a  relatively  low  discount  rate  of  6%. 


 242  See    8,  supra. 
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 add/  remove  a  party  to  a  call.  As  discussed  in  paragraph  nine,  supra,  the  Court  found  that  the  Third  R&  O  did  not  adequately  explain  the  basis  for  its  conclusion  that  this  capability  constituted  call-  identifying  information 
 nor  how  granting  LEAs  this  capability  would  satisfy  CALEAs  requirements  by  cost-  effective  methods. 
 105.  Comments.  CDT  states  that  CALEA  requires  only  that  carriers  give  LEAs  the  specific  telephone  numbers  associated  with  a  call.  CDT  contends  that  if  a  subscriber  switches  from  one  call  to 


 another  using  call  waiting,  there  are  two  calls  in  progress,  and  that  switching  back-  and-  forth  between  calls  does  not  constitute  termination  of  the  first  call.  243  CDT  further  contends  that,  under  the  Third  R&  Os 
 interpretation  of  call  waiting,  there  would  be  two  origins  of  the  same  call    the  originating  phone  number  and  the  flash  signal  used  by  the  subscriber  to  resume  a  conversation  with  the  originating  caller. 
 Finally,  CDT  contends  that  a  subscribers  activation  of  call  forwarding  service  does  not  identify  the  origin,  direction,  destination,  or  termination  of  a  communication  because  no  communication  has  taken 
 place.  244  CTIA  makes  similar  comments  regarding  call  waiting  and  call  forwarding.  Specifically,  CTIA  states  that  although  call  waiting  involves  two  phone  calls,  each  with  an  origin  and  termination,  it  does  not 
 involve  the  origin  and  termination  of  a  new  communication  every  time  a  party  switches  from  one  call  to  another.  CTIA  further  states  that  activation  of  call  forwarding  does  not  necessarily  identify  any  particular 
 call  within  the  meaning  of  CALEA,  given  that  a  subscriber  may  activate  call  forwarding  without  ever  forwarding  any  call.  Finally,  CTIA  states  that  the  concern  that  use  of  call  forwarding  might  hide  from 
 LEAs  the  called  telephone  number  was  addressed  in  J-  STD-  025  by  providing  the  telephone  numbers  identifying  the  direction  and  termination  of  forwarded  calls.  245 


 106.  BellSouth  states  that  subject-  initiated  dialing  and  signaling  information  is  not  call-identifying  information.  BellSouth  argues  that  J-  STD-  025  requires  carriers  to  deliver  to  LEAs  telephone 
 numbers  that  are  related  to  the  origination  or  destination  of  a  call,  and  that  a  subject-  initiated  dialing  and  signaling  capability  would  provide  information  that  has  nothing  to  do  with  the  routing  of  a  call.  246 
 BellSouth  further  argues  that,  under  J-  STD-  025,  carriers  report  the  resultant  status  change  that  occurs  in  the  call  rather  than  the  stimulus  itself,  but  that  the  information  provided  by  J-  STD-  025  is  similar  to  what 
 would  be  provided  by  subject-  initiated  dialing  and  signaling  information.  247  BellSouth  also  contends  that  such  information  is  not  reasonably  available  because  there  are  significant  technical  issues  that  make  a 
 subject-  initiated  dialing  and  signaling  capability  difficult  to  achieve.  For  example,  BellSouth  states  that  in  some  switch  implementations,  detection  and  collection  of  off-  hook  and  digit  information  occur  in  a  line 
 module  that  is  separate  and  distinct  from  the  main  processor  of  the  switch.  Accordingly,  BellSouth  maintains  that  making  this  information  available  to  the  main  processor  so  that  it  can  be  sent  to  LEAs  may 
 require  fundamental  modifications  to  switch  architecture  that  are  not  only  technically  challenging  but  also  costly.  248 


 107.  DoJ/  FBI  state  that  subject-  initiated  dialing  and  signaling  information  is  generated  by  use  of  such  services  as  call  forwarding,  call  waiting,  call  hold,  and  three-  way  calling,  and  that,  to  the  extent 
 these  services  have  been  available  in  the  past,  LEAs  have  had  access  to  such  information.  DoJ/  FBI  contend  that  CALEAs  definition  of  call-  identifying  information  encompasses  subject-  initiated  dialing 
 and  signaling  information  because  such  information  identifies  the  direction  or  destination  of  communications.  249  DoJ/  FBI  further  contend  that  BellSouth  is  incorrect  when  it  claims  that  the  dialing 


 243  CDT  Comments  at  10. 
 244  Id.  at  11. 
 245  CTIA  Comments  at  14-  15. 
 246  BellSouth  Comments  at  16. 
 247  Id.  at  17. 
 248  Id.  at  17-  18. 
 249  DoJ/  FBI  Comments  at  23-  25. 
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 and  signaling  activity  initiated  by  pressing  a  flash  hook  or  feature  key  is  unrelated  to  call  routing.  DoJ/  FBI  assert  that  the  resulting  signals  are  transmitted  to  the  carriers  switch  to  enable  the  switch  to 
 control  the  various  legs  of  the  call  and  route  the  communication  properly.  DoJ/  FBI  also  assert  that  BellSouth  is  incorrect  that  similar  information  is  already  provided  to  LEAs  under  J-  STD-  025  because  that 
 standard  does  not  capture  all  of  the  call-  identifying  information  that  is  generated  when  a  subject  engages  in  dialing  and  signaling  activity.  DoJ/  FBI  acknowledge  that  there  may  be  specific  instances  in  which  a 
 particular  subject-  initiated  dialing  or  signaling  action  can  be  detected  or  inferred  through  the  messages  provided  by  J-  STD-  025,  but  maintain  that  will  often  not  be  the  case.  250  DoJ/  FBI  reference  their  earlier 
 reply  comments  in  this  proceeding,  in  which  they  argued  that  the  Change  message  of  J-  STD-  025  is  inadequate  to  capture  subject-  initiated  dialing  and  signaling  activity  when  the  subject  presses  the  flash 
 hook  to  move  back  and  forth  between  two  legs  of  a  call.  DoJ/  FBI  therefore  maintain  that  J-  STD-  025  does  not  ensure  that  LEAs  will  receive  critical  information  about  the  direction  and  destination  of  each 
 communication  within  a  multi-  leg  call.  251  DoJ/  FBI  also  maintain  that  the  information  that  LEAs  would  derive  from  a  subjects  dialing  and  signaling  activity  is  not  redundant  with  the  information  that  LEAs 
 would  derive  from  party  hold/  join/  drop  messages  because  such  activity  may  be  either  pre-  cut-  through  or  post-  cut-  through  and  may  be  transmitted  either  in-  band  or  out-  of-  band.  DoJ/  FBI  contend  that,  while 
 some  subject  initiated  dialing  and  signaling  activity  may  result  in  party  hold/  join/  drop  messages,  much  of  it  will  not.  252 


 108.  Discussion.  We  find  that  authorizing  a  subject-  initiated  dialing  and  signaling  electronic  surveillance  capability  would  be  in  conformance  with  Sections  102(  2)  and  103(  a)  of  CALEA.  We 
 conclude  that  this  capability  constitutes  call-  identifying  information  because  it  provides  information  regarding  the  party  or  place  to  which  a  forwarded  call  is  redirected  and  because  it  provides  information 
 regarding  a  waiting  calling  party.  We  also  conclude  that  access  to  subject-  initiated  dialing  and  signaling  information  may  be  necessary  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  each  feature  to  be  timely  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.  Further,  we  conclude  that  signals  such  as  on-  hook,  off-  hook,  and  flash-hook  signals,  which  are  generated  by  a  subject,  are  reasonably  available  to  the  carrier  because  they  must  be 
 processed  at  the  carriers  Intercept  Access  Point.  DTMF  signals  generated  by  a  subject  that  must  be  processed  at  the  Intercept  Access  Point  also  are  reasonably  available  to  the  carrier;  however,  some  DTMF 
 signals  generated  by  the  subject  are  post-  cut-  through  digits,  and  those  signals  are  covered  under  dialed  digit  extraction.  We  note  that  there  are  some  functions  that  are  sometimes  performed  by  the  network  and  that 
 at  other  times  are  performed  by  customer  premises  equipment.  When  customer  premises  equipment  is  used  to  perform  any  of  the  functions  described  herein  and  no  network  signal  is  generated,  that  information  is 
 not  reasonably  available  to  a  carrier,  and  thus  is  not  required  to  be  provided. 
 109.  Additionally,  we  note  that  commenters  have  presented  no  alternative  ways  of  obtaining  all  the  information  encompassed  by  this  capability.  We  have  found  J-  STD-  025  deficient  insofar  as  it  will 


 not  guarantee  the  delivery  of  all  call-  identifying  information,  and  therefore  reject  those  comments  that  contend  that  J-  STD-  025  is  an  alternative  to  the  provision  of  subject-  initiated  dialing  and  signaling 
 information.  For  example,  J-  STD-  025  does  not  provide  all  call-  identifying  information  that  is  generated  when  a  subject  engages  in  dialing  and  signaling  activity,  such  as  when  the  subject  uses  the  flash  hook  to 


 250  DoJ/  FBI  Reply  Comments  at  14-  15. 
 251  DoJ/  FBI  Reply  Comments  Regarding  Standards  for  Assistance  Capability  Requirements,  CC  Docket  No.  97-213, 
 filed  June  12,  1998,  at  48-  49.  252 
 DoJ/  FBI  Reply  Comments  Regarding  Further  Notice  of  Proposed  Rulemaking,  CC  Docket  No.  97-  213,  filed  January  27,  1999,  at  46-  47. 
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 move  back  and  forth  between  two  legs  of  a  multi-  leg  call.  Further,  while  there  may  be  some  overlap  between  a  subject-  initiated  dialing  and  signaling  information  capability  and  other  punch  list  capabilities,  it 
 appears  that  a  subject-  initiated  dialing  and  signaling  information  capability  provides  some  unique  call-identifying  information;  e.  g.,  this  capability  would  permit  a  LEA  to  know  when  services  such  as  call 
 forwarding  and  call  return  are  being  used  by  the  subject. 
 110.  We  now  turn  to  the  cost  considerations  under  Section  107(  b)(  1)  and  (3)  of  CALEA.  First,  we  must  find  that  subject-  initiated  dialing  and  signaling  meets  CALEAs  capability  requirements 


 by  cost-  effective  methods.  253  Because  there  are  no  alternative  means  of  accomplishing  this  objective,  we  cannot  engage  in  the  type  of  cost-  comparison  analysis  discussed  in  Section  III  B,  supra.  However,  we 
 note  that  several  mechanisms    including  the  FBI  reimbursement  program    do  serve  to  minimize  the  cost  of  providing  this  capability.  In  the  Third  R&  O,  we  found  that  five  major  telecommunications  manufacturers 
 anticipated  total  revenues  from  carriers  purchasing  a  subject-  initiated  dialing  and  signaling  capability  of  just  $35  million.  254  Further,  as  noted  above,  the  FBIs  buyout  and  flexible  deployment  programs,  coupled  with 
 five  manufacturers  incorporation  of  all  punch  list  capabilities  into  one  software  upgrade,  will  lessen  software  costs  significantly,  and  including  or  not  including  a  subject-  initiated  dialing  and  signaling  capability  in  the 
 manufacturers  software  package  may  not  significantly  change  carriers  costs.  For  these  reasons,  we  find  that  the  cost  to  carriers  of  implementing  this  capability  would  be  minimized  and  that  requiring  the  capability 
 would  be  cost-  effective. 
 111.  We  also  find  that  authorizing  a  subject-  initiated  dialing  and  signaling  capability  is  unlikely  to  significantly  affect  residential  ratepayers.  The  factors  we  previously  identified  as  minimizing  the  cost  for 


 residential  ratepayers    including  the  FBI  buyout  and  flexible  deployment  programs    will  be  applicable  to  subject-  initiated  dialing  and  signaling.  Moreover,  we  note  that  carriers  will  be  able  to  spread  costs  across  a 
 large  ratepayer  base  and  there  is  no  indication  that  the  costs  of  subject-  initiated  dialing  and  signaling  will  be  disproportionately  borne  by  residential  (versus  other  classes  of)  ratepayers.  Even  if  wireline  carriers  were 
 forced  to  bear  costs  as  great  as  the  $8  million  for  this  capability  estimated  by  five  major  telecommunications  manufacturers  255  and  these  costs  were  passed  on  to  residential  ratepayers  as  a  one-  time  charge,  the  cost  per 
 residential  ratepayer  would  average  only  a  few  pennies.  256  Alternatively,  an  $8  million  charge  to  wireline  carriers,  if  converted  to  a  rate  increase  to  almost  100  million  residential  ratepayers,  would  average  less  than  a 
 penny  per  month  per  ratepayer.  257 
 112.  Finally,  we  find  that  authorizing  a  subject-  initiated  dialing  and  signaling  information  electronic  surveillance  capability  would  be  in  conformance  with  the  second  prong  of  Section  107(  b)  of 


 CALEA.  258  We  see  no  significant  privacy  issues  arising  from  grant  to  LEAs  of  a  subject-  initiated  dialing  and  signaling  information  capability,  no  party  to  this  proceeding  challenged  the  Third  R&  Os  decision  with 
 respect  to  that  capability  on  privacy  grounds,  and  the  Court  did  not  cite  privacy  as  a  basis  for  remanding  to  the  Commission  the  Third  R&  Os  decision  with  respect  to  that  capability.  Therefore,  we  do  not 
 address  this  factor  further. 
 253  47  U.  S.  C.    1006(  b). 
 254  Third  R&  O,  supra  n.  2,  at  Appendix  B.  Figure  is  for  wireline  and  wireless  carriers. 
 255  Id.  Figure  is  for  wireline  carriers  only. 
 256  Based  on  96-  98  million  U.  S.  households  with  wireline  telephone  service,  the  cost  would  average  8  cents  per 
 subscribing  household.  See  n.  153,  supra.  257 
 Specifically,  an  $8  million  charge  to  carriers,  converted  to  a  rate  increase  to  96-  98  million  residential  ratepayers,  would  average  0.4  cents  per  month  per  ratepayer  using  a  relatively  rapid  amortization  period  of  two  years  and  a 


 relatively  high  discount  rate  of  12%;  and  would  average  0.  2  cents  per  month  per  ratepayer  using  a  relatively  slow  amortization  period  of  5  years  and  a  relatively  low  discount  rate  of  6%. 


 258  See    8,  supra. 
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 113.  Accordingly,  in  view  of  the  fact  that  we  conclude  that  subject-  initiated  dialing  and  signaling  information  constitutes  call-  identifying  information  and  that  authorizing  a  subject-  initiated 
 dialing  and  signaling  electronic  surveillance  capability  would  be  in  conformance  with  Section  107(  b)  of  CALEA,  we  find  that  a  subject-  initiated  dialing  and  signaling  capability  is  a  technical  requirement  that 
 meets  the  assistance  capability  requirements  of  Section  103  of  CALEA. 
 F.  In-  Band  and  Out-  of-  Band  Signaling  Information 
 114.  This  capability  would  enable  a  telecommunications  carrier  to  send  a  notification  message  to  the  LEA  when  any  call-  identifying  network  signal  (e.  g.,  audible  ringing  tone,  busy,  call  waiting  signal, 


 message  light  trigger)  is  sent  to  a  subject.  For  example,  if  someone  leaves  a  voice  mail  message  on  the  subjects  phone,  the  notification  to  the  LEA  would  indicate  the  type  of  call-  identifying  network  signal  sent  to 
 the  subject  (e.  g.,  stutter  dial  tone,  message  light  trigger).  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.  As  discussed  in  paragraph  nine,  supra,  the  Court  found  that  the  Third  R&  O  did  not  adequately  explain  the  basis  for  its  conclusion  that  this  capability 
 constituted  call-  identifying  information  nor  how  granting  LEAs  this  capability  would  satisfy  CALEAs  requirements  by  cost-  effective  methods. 


 115.  Comments.  Cingular  states  that  most  in-  band  and  out-  of-  band  signaling  information  is  not  related  to  call  routing  and,  moreover,  cannot  be  detected  from  the  network  or  the  originating  or 
 terminating  switches.  Cingular  therefore  argues  that  in-  band  and  out-  of-  band  network  signaling  information  is  not  reasonably  available  to  carriers.  Cingular  further  argues  that,  to  the  extent  these  signals 
 can  be  audibly  detected,  they  can  already  be  obtained  through  a  properly  authorized  Title  III  intercept.  Finally,  Cingular  argues  that  implementing  an  in-  band  and  out-  of-  band  network  signaling  information 
 capability  would  require  the  widespread  deployment  of  signal  detection  equipment,  at  significant  cost  to  residential  ratepayers.  259 


 116.  USTA  states  that  in-  band  and  out-  of-  band  signaling  information  is  not  used  to  process  or  route  calls  and,  in  most  cases,  does  not  constitute  communications.  Instead,  USTA  maintains,  such 
 information  is  associated  with  call  attempts  that  do  not  result  in  a  communication,  such  as  a  busy  signal.  USTA  also  maintains  that  J-  STD-  025  already  provides  in-  band  and  out-  of-  band  signaling  information, 
 including  a  termination  message  that  indicates  whenever  a  call  is  incoming  to  a  subject  and  includes  the  directory  number  of  the  calling  party,  if  available  to  the  network.  USTA  therefore  concludes  that  an  in-band 
 and  out-  of-  band  signaling  information  capability  is  unnecessary  and  not  cost  effective.  260 
 117.  DoJ/  FBI  state  that  in-  band  and  out-  of-  band  network  signaling  information  has  traditionally  been  available  to  LEAs  and  constitutes  call-  identifying  information  under  J-  STD-  025s 


 definition,  which  includes  unsuccessful  call  attempts  as  well  as  completed  calls.  DoJ/  FBI  contend  that  network  signaling  information  may  identify  how  a  call  attempt  is  terminated  (e.  g.,  a  call  attempt  that 
 results  in  a  busy  signal  indicates  that  the  call  attempt  is  being  terminated  in  a  different  manner  from  a  call  attempt  that  results  in  ringing);  or  may  identify  the  direction  of  a  call  attempt  by  the  subjects  facilities 
 (e.  g.,  a  stutter  tone  may  identify  the  redirection  of  an  incoming  call  to  the  subjects  voice  mail  box).  261 
 118.  In  reply  comments,  DoJ/  FBI  contend  that  the  suggestion  of  commenting  parties  that  signals  generated  during  unsuccessful  call  attempts  do  not  involve  communications  is  incorrect.  DoJ/  FBI 


 note  that  J-  STD-  025  provides  a  Termination  Attempt  message  to  LEAs  to  report  every  incoming  circuit- 


 259  Cingular  Comments  at  10. 
 260  USTA  Comments  at  9. 
 261  DoJ/  FBI  Comments  at  26-  27. 
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 mode  call  attempt  to  the  intercept  subject,  and  assert  that,  if  the  definition  of  call-  identifying  information  were  construed  to  exclude  unsuccessful  call  attempts,  LEAs  would  be  denied  access  even  to 
 the  telephone  numbers  associated  with  such  attempts.  DoJ/  FBI  also  assert  that  commenters  are  incorrect  that  this  capability  is  duplicative  of  J-  STD-  025s  existing  message  set.  DoJ/  FBI  reference  their  earlier 
 reply  comments  in  this  proceeding,  in  which  they  argued  that  the  J-  Standard  does  not  require  carriers  to  provide  LEAs  with  notification  of  network-  generated  call  progress  signals.  262  DoJ/  FBI  note  that  the  J-Standard 
 requires  delivery  of  call  content  only  between  call  completion  and  call  release,  and  that  there  is  no  requirement  that  call  content  be  delivered  on  incoming  calls  before  they  are  answered.  Therefore,  they 
 argue  that  tones  such  as  busy  signals  will  not  be  delivered  to  LEAs  without  an  in-  band  and  out-  of-  band  signaling  capability.  263  DoJ/  FBI  also  argue  that  the  J-  Standards  Termination  Attempt  message  is  an 
 inadequate  substitute  for  both  audible  tones  and  alphanumeric  display  information.  For  example,  DoJ/  FBI  contend  that  an  alphanumeric  display  may  notify  the  subject  that  a  call  has  been  redirected  to  the 
 subscribers  voice  mail  box,  and  none  of  the  J-  Standards  messages  would  disclose  that  a  voice  mail  message  has  been  left  for  the  subject.  264  DoJ/  FBI  conclude  that  carriers  must  be  capable  of  providing  to 
 LEAs  network  signals  that  originate  in  their  own  networks,  but  do  not  have  to  provide  signals  that  originate  in  other  carriers  networks.  265 


 119.  Decision.  We  find  that  authorizing  in-  band  and  out-  of-  band  signaling  information  electronic  surveillance  capability  for  call-  identifying  information  that  is  based  on  network  signals  that 
 originate  on  carriers  own  networks  would  be  in  conformance  with  Sections  102(  2)  and  103(  a)  of  CALEA.  While  certain  types  of  signals  used  by  carriers  for  supervision  or  control  do  not  trigger  any  audible 
 or  visual  message  to  the  subscriber  and  are  therefore  not  call-  identifying  information,  other  types  of  signals    such  as  ringing  and  busy  tones    are  call-  identifying  information  under  our  revised  definitions  because  they 
 convey  information  about  the  termination  of  a  call.  For  example,  when  a  subject  calls  another  party,  until  the  called  party  answers  the  subjects  communications  path  is  terminated  at  an  audible  ringing  tone 
 generator.  However,  if  the  called  party  is  engaged  in  another  conversation  and  does  not  have  call  waiting,  the  subjects  communications  path  is  terminated  at  a  busy  signal  generator.  Thus,  even  for  calls  from  the 
 subject  that  are  never  answered,  the  fact  that  the  subject  hears  busy  or  audible  ringing  signal  provides  call-  identifying  information  that  is  not  provided  to  law  enforcement  via  other  means. 


 120.  We  disagree  with  USTA  that  the  J-  Standard  provides  adequate  in-  band  and  out-  of-  band  signaling  information.  As  DoJ/  FBI  note,  there  are  both  audible  signals  and  alphanumeric  display 
 information  that  the  J-  Standard  does  not  provide  that  convey  call-  identifying  information.  The  fact  that  a  call  attempt  does  not  result  in  a  conversation  because  the  line  is  busy  or  because  the  called  party  does  not  answer 
 does  not  mean  that  no  communication  has  taken  place. 
 121.  In-  band  and  out-  of-  band  signals  that  are  generated  at  the  carriers  Intercept  Access  Point  toward  the  subscriber  are  handled  by  the  carrier  and  are  clearly  available  to  the  carrier  at  an  Intercept  Access 


 Point.  As  discussed  supra,  we  conclude  that  these  in-  band  and  out-  of-  band  signals  convey  call-  identifying  information.  We  further  note  that,  because  carriers  already  deliver  this  information  to  subscribers,  we  see  no 
 reason  why  such  in-  band  and  out-  of-  band  signaling  information  cannot  also  be  made  available  to  LEAs  without  significantly  modifying  the  carriers  network.  Thus,  in-  band  and  out-  of-  band  signaling  information 
 is  reasonably  available.  266  Additionally,  we  note  that  commenters  have  presented  no  alternative  ways  of 
 262  DoJ/  FBI  Reply  Comments  Regarding  Standards  for  Assistance  Capability  Requirements,  supra  n.  251,  at  55. 
 263  Id.  at  57. 
 264  Id.  at  58-  59. 
 265  DoJ/  FBI  Reply  Comments  at  15-  16. 
 266  There  is  nothing  in  the  record  to  refute  our  conclusion  that  this  information  can  be  made  available  without  a 
 carrier  being  unduly  burdened  with  network  modifications.  See  also  Third  R&  O,  supra  n.  2,  at    28-  29;  supra  n.  206  and  accompanying  text. 
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 obtaining  all  the  information  encompassed  by  this  capability.  While  the  J-  Standard  provides  some  of  the  information  encompassed  by  this  capability,  the  J-  Standard  does  not  provide  all  such  information,  including 
 an  indication  of  whether  an  unanswered  call  from  the  subject  to  another  party  results  in  a  busy  or  ringing  signal. 


 122.  We  now  turn  to  the  cost  considerations  under  Section  107(  b)(  1)  and  (3)  of  CALEA.  First,  we  must  find  that  in-  band  and  out-  of-  band  signaling  information  meets  CALEAs  capability 
 requirements  by  cost-  effective  methods.  267  Because  there  are  no  alternative  means  of  accomplishing  this  objective,  we  cannot  engage  in  the  type  of  cost-  comparison  analysis  discussed  in  Section  III  B,  supra. 
 However,  we  note  that  several  mechanisms    including  the  FBI  reimbursement  program    do  serve  to  minimize  the  cost  of  providing  this  capability.  In  the  Third  R&  O,  we  found  that  five  major 
 telecommunications  manufacturers  anticipated  total  revenues  from  carriers  purchasing  an  in-  band  and  out-  of-band  signaling  information  capability  of  $57  million.  268  As  noted  above,  the  FBIs  buyout  and  flexible 
 deployment  programs,  coupled  with  five  manufacturers  incorporating  all  punch  list  capabilities  into  one  software  upgrade,  will  lessen  software  costs  significantly.  Also,  we  again  note  that  including  or  not  including 
 an  in-  band  and  out-  of-  band  signaling  information  capability  may  not  significantly  change  carriers  costs.  For  these  reasons,  we  find  that  the  cost  to  carriers  of  implementing  this  capability  would  be  minimized  and  that 
 requiring  the  capability  would  be  cost-  effective. 
 123.  We  also  find  that  authorizing  an  in-  band  and  out-  of-  band  signaling  information  capability  is  unlikely  to  significantly  affect  residential  ratepayers.  The  factors  we  previously  identified  as  minimizing  the 


 cost  for  residential  ratepayers    including  the  FBI  buyout  and  flexible  deployment  programs    will  be  applicable  to  in-  band  and  out-  of-  band  signaling  information.  Moreover,  we  note  that  carriers  will  be  able  to 
 spread  costs  across  a  large  ratepayer  base  and  there  is  no  indication  that  the  costs  of  in-  band  and  out-  of-  band  signaling  information  will  be  disproportionately  borne  by  residential  (versus  other  classes  of)  ratepayers. 
 Even  if  wireline  carriers  were  forced  to  bear  costs  as  great  as  the  $27  million  for  this  capability  estimated  by  five  major  telecommunications  manufacturers  269  and  these  costs  were  passed  on  to  residential  ratepayers  as  a 
 one-  time  charge,  the  cost  per  residential  ratepayer  would  average  much  less  than  one  dollar.  270  Alternatively,  a  $27  million  charge  to  carriers,  if  converted  to  a  rate  increase  to  almost  100  million  residential  ratepayers, 
 would  average  only  about  a  penny  per  month  per  ratepayer.  271 
 124.  Finally,  we  find  that  authorizing  an  in-  band  and  out-  of-  band  signaling  information  electronic  surveillance  capability  would  be  in  conformance  with  the  second  prong  of  Section  107(  b)  of 


 CALEA.  272  We  see  no  significant  privacy  issues  arising  from  grant  to  LEAs  of  an  in-  band  and  out-  of-  band  signaling  information  capability,  no  party  to  this  proceeding  challenged  the  Third  R&  Os  decision  with 
 respect  to  that  capability  on  privacy  grounds,  and  the  Court  did  not  cite  privacy  as  a  basis  for  remanding  to  the  Commission  the  Third  R&  Os  decision  with  respect  to  that  capability.  Therefore,  we  do  not 
 address  this  factor  further. 


 267  47  U.  S.  C.    1006(  b). 
 268  Third  R&  O,  supra  n.  2,  at  Appendix  B.  Figure  is  for  wireline  and  wireless  carriers. 
 269  Id.  Figure  is  for  wireline  carriers  only. 
 270  Based  on  96-  98  million  U.  S.  households  with  wireline  telephone  service,  the  cost  would  average  28  cents  per 
 subscribing  household.  See  n.  153,  supra.  271 
 Specifically,  a  $27  million  charge  to  carriers,  converted  to  a  rate  increase  to  96-  98  million  residential  ratepayers,  would  average  1.3  cents  per  month  per  ratepayer  using  a  relatively  rapid  amortization  period  of  two  years  and  a 


 relatively  high  discount  rate  of  12%;  and  would  average  0.  5  cents  per  month  per  ratepayer  using  a  relatively  slow  amortization  period  of  5  years  and  a  relatively  low  discount  rate  of  6%. 


 272  See    8,  supra. 
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 125.  Accordingly,  in  view  of  the  fact  that  we  conclude  that  in-  band  and  out-  of-  band  signaling  information  constitutes  call-  identifying  information  and  that  authorizing  an  in-  band  and  out-  of-  band 
 signaling  information  electronic  surveillance  capability  would  be  in  conformance  with  Section  107(  b)  of  CALEA,  we  find  that  an  in-  band  and  out-  of-  band  signaling  information  capability  is  a  technical 
 requirement  that  meets  the  assistance  capability  requirements  of  Section  103  of  CALEA. 
 G.  CALEA  Section  107(  b)(  4) 
 126.  Although  Section  107(  b)(  4)    i.  e.,  serve  the  policy  of  the  United  States  to  encourage  the  provision  of  new  technologies  and  services  to  the  public    was  not  briefed  to  or  addressed  by  the  Court  in 


 its  Remand  Decision,  we  briefly  address  this  factor  in  accordance  with  our  statutory  directive  under  CALEA.  As  described  in  the  legislative  history,  one  of  the  key  concerns  in  enacting  CALEA  was  the 
 goal  of  ensuring  that  the  telecommunications  industry  was  not  hindered  in  the  rapid  development  and  deployment  of  the  new  services  and  technologies  that  continue  to  benefit  and  revolutionize  society.  273 
 Aside  from  one  suggestion  that  the  cost  of  compliance  would  divert  capital  from  new  technology  deployment,  274  no  commenter  has  argued    nor  is  there  anything  in  the  record  to  suggest    that  inclusion 
 of  the  four  punch  list  requirements  would  impede  in  any  way  the  provision  of  new  telecommunications  technologies  or  services  to  the  public  or  would  delay  in  any  manner  the  course  or  current  pace  of 
 technology.  Rather,  the  punch  list  requirements  represent  a  technical  solution  that  interfaces  with  the  carriers  own  network  designs  to  provide  LEAs  with  interception  access  and  the  capability  to  intercept 
 wire  and  electronic  communications.  Additionally,  as  noted  above,  for  the  majority  of  switches,  carriers  will  be  permitted  under  the  FBIs  flexible  deployment  program  to  implement  any  required  punch  list 
 capabilities  coincident  with  routine  switch  upgrades.  275  Moreover,  we  do  not  believe  Section  107(  b)(  4)  was  intended  to  bar  a  feature  simply  because  it  imposes  costs  on  telecommunications  companies  and 
 thereby  might  affect  their  other  spending.  The  two  express  references  to  costs  in  Section  107(  b)  (i.  e.,  cost  effectiveness  and  minimizing  impact  on  residential  ratepayers)  consider  cost  in  a  relative,  not  an  absolute, 
 sense.  Accordingly,  we  do  not  believe  paragraph  (b)(  4)  was  intended  to  prohibit  any  feature  because  the  cost  might  have  some  impact  on  telecommunications  companies  other  spending.  Given  this,  we  find  that 
 adoption  of  the  punch  list  requirements  is  consistent  with  the  United  States  policy  of  encouraging  the  provision  of  new  technologies  and  services  to  the  public 


 H.  Punch  List  Compliance  Date 
 127.  Section  107(  b)(  5)  of  CALEA  requires  that  the  Commission  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.  276  The  Third  R&  O  required  that  the  six  punch  list  capabilities  be  implemented  by  wireline,  cellular,  and  broadband 
 PCS  carriers  by  September  30,  2001  and    as  discussed  in  paragraph  60,  supra    five  telecommunications  switch  manufacturers  have  incorporated  all  of  these  capabilities  into  one  software  upgrade.  In  the  Order 
 in  this  proceeding,  which  suspended  the  September  30,  2001  deadline  for  all  punch  list  capabilities,  including  the  two  unchallenged  capabilities  (i.  e.,  subject-  initiated  conference  calls  and  timing 
 information),  we  indicated  that  we  anticipated  establishing  June  30,  2002  as  the  new  compliance  date  for  all  required  punch  list  capabilities  as  we  expected  to  address  the  Courts  Remand  Decision  by  years  end 
 and  given  that  the  record  indicates  that  carriers  can  implement  any  required  changes  to  their  software 


 273  House  Report  No.  103-  827,  at  3493. 
 274  USTA  Comments,  at  13. 
 275  See    60,  supra. 
 276  47  U.  S.  C.    1006(  b)(  5). 
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 within  six  months  of  our  decision.  277  We  find  it  reasonable  to  require  wireline,  cellular,  and  broadband  PCS  carriers  to  implement  all  punch  list  capabilities  by  June  30,  2002,  and  conclude  that  the  June  30, 
 2002  deadline  will  satisfy  Section  107(  b)(  5).  278  At  the  initial  stages  of  CALEA  implementation,  the  Commission  found  that  carriers  could  put  into  effect  any  required  changes  to  their  network  within  six 
 months  of  its  decision.  279  We  recognize  that  this  is  a  more  aggressive  timetable  than  the  six  months  we  anticipated  earlier.  We  believe  that  this  accelerated  compliance  schedule  is  reasonable  for  this  stage  of 
 the  CALEA  implementation,  as  carriers  have  been  aware  of  the  CALEA  capabilities  under  consideration  in  the  instant  Order  on  Remand  since  October  2000.  280  In  addition,  the  record  indicates  that  much  of  the 
 software  required  to  implement  the  punch  list  items  has  already  been  developed,  which  should  significantly  speed  implementation.  281  Finally,  carriers  have  much  greater  experience  in  meeting 
 CALEAs  capability  requirements  than  they  had  in  1998.  Together,  these  factors  make  a  shorter  implementation  timetable  reasonable. 


 128.  We  note  that  carriers  who  are  unable  to  comply  may  seek  relief  under  the  applicable  provisions  of  CALEA.  282  The  Wireline  Competition  Bureau  (formerly,  the  Common  Carrier  Bureau)  and 
 the  Wireless  Telecommunications  Bureau  previously  issued  a  Public  Notice  outlining  the  petitioning  process  for  telecommunications  carriers  seeking  relief  under  Section  107(  c)  for  an  extension  of  the 
 CALEA  compliance  deadline.  283  Carriers  seeking  relief  from  the  June  30,  2002  compliance  date  should  follow  the  procedures  outlined  in  that  Public  Notice.  We  further  note  that,  in  most  cases,  extensions  that 
 the  Commission  has  already  granted  will  apply  to  the  capabilities  we  are  requiring  in  this  Order  on 


 277  Order,  supra  n.  17,  at    12. 
 278  Because  the  pleading  cycle  closed  prior  to  the  Commissions  decision  to  suspend  the  compliance  deadline, 
 commenters  generally  request  relief  from  the  original  September  30,  2001  deadline  as  opposed  to  identifying  a  specific  time  period  that  they  believed  would  be  reasonable.  See,  e.  g.,  AT&  T  Reply  Comments  at  9.  However, 


 one  commenter    KMC  Telecom    specifically  requested  that  the  Commission  adopt  a  June  30,  2002  date.  KMC  Telecom  Reply  Comments  at  4. 
 279  Order,  supra  n.  17,  at    9,  12.  The  Commission  reached  this  decision  after  considering  comments  that  said  it 
 could  take  longer  for  large  carriers  to  deploy  CALEA-  compliant  switches  and  concluding  that,  among  other  things,  a  six-  month  time  period  was  sufficient  and  reasonable  given  the  urgency  of  ensuring  law  enforcement  access  to 


 CALEA's  capabilities.  Petition  for  Extension  of  the  Compliance  Date  under  Section  107  of  the  Communications  Assistance  for  Law  Enforcement  Act,  Memorandum  Opinion  and  Order,  13  FCC  Rcd  17990,  18017-  18    48-  49. 
 280  See  Public  Notice,  supra  n.  19. 
 281  See    60,  supra. 
 282  We  again  note  that  a  carrier  is  not  required  to  make  any  equipment,  facility,  or  service  deployed  on  or  before 
 January  1,  1995  CALEA-  compliant  unless  the  Attorney  General  has  agreed  to  pay  the  carrier  the  reasonable  costs  directly  associated  with  such  modifications;  or  unless  the  equipment,  facility,  or  service  has  been  replaced, 


 significantly  upgraded,  or  undergone  major  modification.  See  47  U.  S.  C.    1008(  c)(  3).  To  the  extent  that  a  carrier  believes  that  implementing  any  required  capability  is  not  reasonably  achievable  for  cost  or  other  reasons  with 
 respect  to  any  equipment,  facility,  or  service  deployed  after  January  1,  1995,  the  carrier  may  petition  the  Commission  under  Section  109(  b)  of  CALEA  for  a  determination.  If  the  Commission  determines  that  the  capability 
 is  not  reasonably  achievable,  then  the  carrier  will  not  have  to  make  the  modifications,  unless  the  Attorney  General  agrees  to  pay  the  additional  costs  of  making  the  capability  requirements  reasonably  achievable  and  enters  into  such 
 an  agreement  with  the  carrier.  47  U.  S.  C.    1008  (b)(  2).  See  also    60-  61,  supra.  283 
 The  Common  Carrier  and  Wireless  Telecommunications  Bureaus  Establish  Procedures  for  Carriers  to  Submit  or  Supplement  CALEA  Section  107(  c)  Extension  Petitions,  Both  Generally  and  With  Respect  to  Packet-  Mode  and 


 Other  Safe  Harbor  Standards,  Public  Notice,  16  FCC  Rcd  17,  101  (CCB  WTB  2001)  (Extension  Petition  Procedures  Public  Notice).  Carriers  should  be  aware  that  the  CALEA  Implementation  Section  (CIS)  of  FBI  may  periodically 
 update  its  Flexible  Assistance  Guides.  See  e.  g.,  U.  S.  Dept.  of  Justice,  FBI,  CIS,  Flexible  Deployment  Assistance  Guide  (Jan.  2000);  Deployment  Assistance  Guide  (Jan.  2000);  and  Flexible  Deployment  Assistance  Guide,  Second 
 Edition,  Packet-  Mode  Communications  (Aug.  2001).  See  also  www.  askcalea.  net. 
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 Remand.  284  As  the  Wireline  Competition  and  Wireless  Telecommunications  Bureaus  have  previously  stated:  Unless  the  Commission  action  [granting  an  extension]  specifies  otherwise,  the  extension  applies 
 to  all  assistance  capability  functions,  including  punch  list  and  packet-  mode  capabilities,  at  the  listed  facilities.  285 


 129.  Therefore,  we  are  lifting  the  suspension  of  the  punch  list  compliance  deadline,  and  specifying  the  revised  punch  list  compliance  deadline  as  June  30,  2002.  Given  that  the  Commission  has 
 rendered  its  final  decision  with  regard  to  the  challenged  punch  list  features,  we  expect  all  carriers  to  be  either  fully  CALEA-  compliant  by  that  date  or  to  have  a  pending  or  granted  petition  seeking  relief  from 
 compliance  with  that  date  that  was  filed  with  the  Commission  under  the  procedures  described  above. 
 IV.  SUPPLEMENTAL  FINAL  REGULATORY  FLEXIBILITY  ANALYSIS 
 (A)  Need  for  and  Purpose  of  this  Action 


 130.  As  required  by  the  Regulatory  Flexibility  Act  (RFA),  286  the  Commission  incorporated  an  Initial  Regulatory  Flexibility  Analysis  (IRFA)  in  the  Further  NPRM.  287  The  Commission  sought  written 
 public  comments  on  the  proposals  in  the  Further  NPRM,  including  the  IRFA.  In  the  Third  R&  O,  the  Commission  adopted  a  Final  Regulatory  Flexibility  Analysis  (FRFA).  288  As  part  of  the  instant  Order  on 
 Remand,  we  have  prepared  this  Supplemental  FRFA  to  conform  to  the  RFA.  289 
 131.  The  Third  R&  O  responded  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.).  The  Commission,  in  compliance  with  47  U.  S.  C.    229,  promulgates  rules  in  this  Order  on  Remand  to  ensure  the  prompt  implementation  of  section  103  of 
 CALEA.  This  action  simply  responds  to  an  Order  of  the  United  States  Court  of  Appeals  for  the  District  of  Columbia  Circuit  (the  Court)  and  puts  into  effect  rules  we  originally  evaluated  as  part  of  the  FRFA 
 in  the  Third  R&  O.  Also,  as  noted,  we  have  already  done  a  FRFA  for  the  rules  at  issue  in  the  Third  R&  O. 
 132.  In  enacting  CALEA,  Congress  sought  to  balance  three  key  policies  with  CALEA:  (  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.  290  The  rules  adopted  in  this  Order  on  Remand  implement  Congresss  goal  to  balance  the  three  key  policies  enumerated  above.  The  objective  of  the  rules  is  to  implement  as  quickly  and 
 effectively  as  possible  the  national  telecommunications  policy  for  wireline,  cellular,  and  broadband  PCS  telecommunications  carriers  to  support  the  lawful  electronic  surveillance  needs  of  law  enforcement 


 284  Preliminary  determinations  of  pending  petitions  also  will  apply  to  the  capabilities  we  are  requiring  in  this  Order 
 on  Remand.  285 
 Extension  Petition  Procedures  Public  Notice  at  16  FCC  Rcd  17103    8.  286 
 See  5  U.  S.  C.    603.  The  RFA,  see  5  U.  S.  C.    601  et.  seq.,  has  been  amended  by  the  Contract  With  America  Advancement  Act  of  1996,  Pub.  L.  No.  104-  121,  110  Stat.  847  (1996)  (CWAAA).  Title  II  of  the  CWAAA  is  the 


 Small  Business  Regulatory  Enforcement  Fairness  Act  of  1996  (SBREFA).  287 
 Communications  Assistance  for  Law  Enforcement  Act,  Further  Notice  of  Proposed  Rulemaking,  13  FCC  Rcd  22632,  22695-  703  (1998). 


 288  Communications  Assistance  for  Law  Enforcement  Act,  Third  Report  and  Order,  CC  Docket  No.  97-  213,  14  FCC 
 Rcd  16794,  16852-  59  (1999).  289 
 See  5  U.  S.  C.    604.  290 
 H.  R.  Rep.  No.  103-  827,  103rd  Cong.,  2d  Sess  (1994)  at  13. 
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 agencies  in  a  manner  that  is  responsive  to  the  Courts  remand  of  the  Third  R&  O. 
 (B)  Summary  of  the  Issues  Raised  by  Public  Comments 
 133.  In  the  Further  NPRM,  the  Commission  performed  an  IRFA  and  asked  for  comments  that  specifically  addressed  issues  raised  in  the  IRFA.  No  parties  filed  comments  directly  in  response  to  the 


 IRFA.  Similarly,  as  part  of  the  pleading  cycle  that  followed  the  Courts  remand  of  the  Third  R&  O,  no  parties  filed  comments  directly  in  response  to  the  IRFA  or  the  FRFA.  In  response  to  non-  RFA  comments 
 filed  in  this  docket,  the  Commission  modified  several  of  the  proposals  made  in  the  Further  NPRM.  These  modifications  include  changes  to  packet  switching,  conference  call  content,  in-  band  and  out-  of-  band 
 signaling,  and  timing  information,  as  first  discussed  in  the  Third  R&  O. 
 134.  The  Commissions  effort  to  update  the  record  in  response  to  the  Courts  Remand  Order  resulted  in  additional  non-  RFA  comments.  The  Rural  Cellular  Association  (RCA)  asserts  that  the  costs  of 


 additional  communications  assistance  capabilities  would  impose  undue  cost  burdens  on  and  jeopardize  the  efficient  planning  and  development  of  facilities  by  small  and  rural  carriers.  291  Similarly,  the  National 
 Telephone  Cooperative  Association  (NTCA)  claims  that  any  regulation  which  requires  carriers  to  deploy  or  upgrade  facilities  disproportionally  affects  small  and  rural  carriers.  292 


 (C)  Description  and  Estimate  of  the  Number  of  Entities  Affected 
 135.  The  RFA  directs  agencies  to  provide  a  description  of  and,  where  feasible,  an  estimate  of  the  number  of  small  entities  that  may  be  affected  by  the  action  taken.  293  The  RFA  generally  defines  the 
 term  small  entity  as  having  the  same  meaning  as  the  terms  small  business,  small  organization,  and  small  governmental  jurisdiction.  294  In  addition,  the  term  small  business  has  the  same  meaning  as  the 
 term  small  business  concern  under  the  Small  Business  Act.  295  A  small  business  concern  is  one  that:  (1)  is  independently  owned  and  operated;  (2)  is  not  dominant  in  its  field  of  operation;  and  (3)  satisfies  any 
 additional  criteria  established  by  the  Small  Business  Administration  (SBA).  296  A  small  organization  is  generally  any  not-  for-  profit  enterprise  which  is  independently  owned  and  operated  and  is  not  dominant 
 in  its  field.  297  Nationwide,  as  of  1992,  there  were  approximately  275,801  small  organizations.  298  Finally,  small  governmental  jurisdiction  generally  means  governments  of  cities,  counties,  towns, 
 townships,  villages,  school  districts,  or  special  districts,  with  a  population  of  less  than  50,000.  299  As  of  1992,  there  were  approximately  85,006  such  jurisdictions  in  the  United  States.  300  This  number  includes 


 291  Rural  Cellular  Association  Comments  at  7. 
 292  National  Telephone  Cooperative  Association  Comments  at  5. 
 293  5  U.  S.  C.    603(  b)(  3). 
 294  Id.,    601(  6). 
 295  5  U.  S.  C.    601(  3)  (incorporating  by  reference  the  definition  of  small  business  concern  in  15  U.  S.  C.    632). 
 Pursuant  to  the  RFA,  the  statutory  definition  of  a  small  business  applies  unless  an  agency,  after  consultation  with  the  Office  of  Advocacy  of  the  Small  Business  Administration  and  after  opportunity  for  public  comment,  establishes 


 one  or  more  definitions  of  such  term  which  are  appropriate  to  the  activities  of  the  agency  and  publishes  such  definition(  s)  in  the  Federal  Register.  5  U.  S.  C.    601(  3). 
 296  Small  Business  Act,  15  U.  S.  C.    632. 
 297  5  U.  S.  C.    601(  4). 
 298  1992  Economic  Census,  U.  S.  Bureau  of  the  Census,  Table  6  (special  tabulation  of  data  under  contract  to  Office 
 of  Advocacy  of  the  U.  S.  Small  Business  Administration).  299 
 5  U.  S.  C.  601(  5).  300 
 U.  S.  Dept.  of  Commerce,  Bureau  of  the  Census,  1992  Census  of  Governments. 
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 38,978  counties,  cities,  and  towns;  of  these,  37,566,  or  96  percent,  have  populations  of  fewer  than  50,000.  301  The  United  States  Bureau  of  the  Census  (Census  Bureau)  estimates  that  this  ratio  is 
 approximately  accurate  for  all  governmental  entities.  Thus,  of  the  85,006  governmental  entities,  we  estimate  that  81,600  (91  percent)  are  small  entities. 


 136.  The  most  reliable  source  of  information  regarding  the  total  numbers  of  certain  common  carrier  and  related  providers  nationwide  appears  to  be  data  the  Commission  publishes  annually  in  its 
 Telecommunications  Provider  Locator  report,  derived  from  filings  made  in  connection  with  the  Telecommunications  Relay  Service  (TRS).  302  According  to  data  in  the  most  recent  report,  there  are  5,679 
 interstate  service  providers.  303  These  providers  include,  inter  alia,  local  exchange  carriers,  wireline  carriers  and  service  providers,  interexchange  carriers,  competitive  access  providers,  operator  service 
 providers,  pay  telephone  operators,  providers  of  telephone  service,  providers  of  telephone  exchange  service,  and  resellers. 


 137.  We  have  included  small  incumbent  local  exchange  carriers  (LECs)  304  in  this  present  RFA  analysis.  As  noted  above,  a  small  business  under  the  RFA  is  one  that,  inter  alia,  meets  the 
 pertinent  small  business  size  standard  (e.  g.,  a  telephone  communications  business  having  1,500  or  fewer  employees),  and  is  not  dominant  in  its  field  of  operation.  305  The  SBAs  Office  of  Advocacy  contends 
 that,  for  RFA  purposes,  small  incumbent  LECs  are  not  dominant  in  their  field  of  operation  because  any  such  dominance  is  not  national  in  scope.  306  We  have  therefore  included  small  incumbent  LECs  in  this 
 RFA  analysis,  although  we  emphasize  that  this  RFA  action  has  no  effect  on  FCC  analyses  and  determinations  in  other,  non-  RFA  contexts. 


 138.  Total  Number  of  Telecommunications  Entities  Affected.  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.  307  This  number  contains  a  variety  of  different  categories  of  entities,  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.  It  seems  certain  that  some  of  those  3,497  telephone  service  firms  may  not  qualify  as  small 
 entities  or  small  incumbent  LECs  because  they  are  not  independently  owned  and  operated.  308  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 


 301  Id. 
 302  FCC,  Common  Carrier  Bureau,  Industry  Analysis  Division,  Telecommunications  Provider  Locator,  Tables  1-  2 
 (November  2001)  (Provider  Locator).  This  report  is  available  on-  line  at:  http://  www.  fcc.  gov/  Bureaus/  Common_  Carrier/  Reports/  FCC-  State_  Link/  Locator/  locat01.  pdf 


 See  also  47  C.  F.  R.    64.  601  et  seq.  303 
 Provider  Locator  at  Table  1.  304 
 See  47  U.  S.  C  251(  h)  (defining  incumbent  local  exchange  carrier).  305 
 15  U.  S.  C.    632.  306 
 Letter  from  Jere  W.  Glover,  Chief  Counsel  for  Advocacy,  SBA,  to  William  E.  Kennard,  Chairman,  FCC  (May  27,  1999).  The  Small  Business  Act  contains  a  definition  of  small  business  concern,  which  the  RFA  incorporates 


 into  its  own  definition  of  small  business.  See  15  U.  S.  C.    632(  a)  (Small  Business  Act);  5  U.  S.  C.    601(  3)  (RFA).  SBA  regulations  interpret  small  business  concern  to  include  the  concept  of  dominance  on  a  national  basis.  13 
 C.  F.  R.    121.102(  b).  307 
 United  States  Dept.  of  Commerce,  Bureau  of  the  Census,  1992  Census  of  Transportation,  Communications,  and  Utilities:  Establishment  of  Firm  Size,  at  Firm  Size  1-  123  (1995)  (  1992  Census). 


 308  15  U.  S.  C.    632(  a)(  1). 
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 LECs  that  may  be  affected  by  the  actions  taken  in  this  Order  on  Remand. 
 139.  Wireline  Carriers  and  Service  Providers.  The  SBA  has  developed  a  definition  of  small  entities  for  wired  telecommunications  carriers.  The  Census  Bureau  reports  that  there  were  2,321  such 


 telephone  companies  in  operation  for  at  least  one  year  at  the  end  of  1992.  309  According  to  the  SBAs  definition,  such  a  small  business  telephone  company  is  one  employing  no  more  than  1,500  persons.  310  All 
 but  26  of  the  2,321  wireline  companies  listed  by  the  Census  Bureau  were  reported  to  have  fewer  than  1,000  employees.  Even  if  all  26  of  the  remaining  companies  had  more  than  1,500  employees,  there 
 would  still  be  2,295  wireline  companies  that  might  qualify  as  small  entities.  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  SBAs  definition.  Therefore,  we  estimate  that  fewer  than  2,295 
 communications  wireline  companies  are  small  entities  that  may  be  affected  by  these  rules. 
 140.  Local  Exchange  Carriers,  Competitive  Access  Providers,  Interexchange  Carriers,  Operator  Service  Providers,  Payphone  Providers,  and  Resellers.  Neither  the  Commission  nor  the  SBA 


 has  developed  a  specific  size  standard  definition  for  small  LECs,  competitive  access  providers  (CAPS),  interexchange  carriers  (IXCs),  operator  service  providers  (OSPs),  payphone  providers,  or  resellers.  The 
 closest  applicable  size  standard  for  these  carrier-  types  under  SBA  rules  is  for  wired  telecommunications  carriers  and  telecommunications  resellers.  311  The  most  reliable  source  of  information  that  we  know 
 regarding  the  number  of  these  carriers  nationwide  appears  to  be  the  data  that  we  collect  annually  in  connection  with  the  TRS.  312  According  to  our  most  recent  data,  there  are  1,329  LECs,  532  CAPs,  229 
 IXCs,  22  OSPs,  936  payphone  providers,  and  710  resellers.  313  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  these  carriers  that  would  qualify  as  small  business  concerns  under  the  SBA's  definition.  Therefore,  we  estimate  that  there  are  fewer  than 
 1,329  small  entity  LECs  or  small  incumbent  LECs,  532  CAPs,  229  IXCs,  22  OSPs,  936  payphone  providers,  and  710  resellers  that  may  be  affected  by  these  rules. 


 141.  Wireless  Carriers.  The  applicable  definition  of  a  small  entity  wireless  carrier  is  the  definition  under  the  SBA  rules  applicable  to  radiotelephone  (wireless)  companies.  This  provides  that  a 
 small  entity  is  a  radiotelephone  company  employing  no  more  than  1,500  persons.  The  Census  Bureau  reports  that  there  were  1,176  radiotelephone  (wireless)  companies  in  operation  for  at  least  one  year  at  the 
 end  of  1992,  of  which  1,164  had  fewer  than  1,000  employees.  314  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.  It  seems  certain  that  some  of  these  carriers  are  not  independently  owned  and  operated.  Consequently,  we  estimate  that  there  are 
 fewer  than  1,164  small  entity  radiotelephone  companies  that  may  be  affected  by  the  actions  taken  in  this  Order  on  Remand. 


 142.  Cellular,  PCS,  SMR  and  Other  Mobile  Service  Providers.  The  most  reliable  source  of 
 309  1992  Census  at  Firm  Size  1-  123  (based  on  previous  SIC  codes). 
 310  13  C.  F.  R.    121.  201,  North  American  Industry  Classification  System  (NAICS)  code  513310.  The  category  of 
 Telecommunications  Resellers,  NAICS  code  513330  also  has  an  associated  business  size  standard  of  1,500  or  fewer  employees. 


 311  13  C.  F.  R.    121.  201,  NAICS  codes  513310  and  513330. 
 312  See  47  C.  F.  R.    64.  601  et  seq.;  Provider  Locator  at  Table  1. 
 313  Provider  Locator  at  Table  1.  The  total  for  resellers  includes  both  toll  resellers  and  local  resellers. 
 314  1992  Census  at  Firm  Size  1-  123. 
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 current  information  from  which  we  can  draw  an  estimate  of  the  number  of  small  business  commercial  wireless  entities  appears  to  be  data  the  Commission  published  annually  in  its  Trends  in  Telephone  Service 
 report.  315  According  to  the  most  recent  Trends  Report,  806  carriers  reported  that  they  were  engaged  in  the  provision  of  cellular  service,  PCS  services,  or  SMR  telephony  services,  which  are  placed  together  in  the 
 data.  316  Moreover,  323  such  licensees  in  combination  with  their  affiliates  have  1,500  or  fewer  employees  and  thus  qualify  as  small  businesses  under  the  above  definition.  Thus,  we  estimate  that  there  are  323  or 
 fewer  small  wireless  service  providers  that  may  be  affected  by  the  rules  we  adopt  in  this  proceeding. 
 (D)  Description  of  Projected  Reporting,  Recordkeeping  and  Other  Compliance  Requirements. 


 143.  No  reporting  and  recordkeeping  requirements  are  imposed  on  telecommunications  carriers.  Telecommunications  carriers,  including  small  carriers,  will  have  to  upgrade  their  network 
 facilities  to  provide  to  law  enforcement  the  assistance  capability  requirements  adopted  herein.  Although  compliance  with  the  technical  requirements  will  impose  costs  on  carriers,  we  have  examined  means  by 
 which  these  costs  will  be  minimized  (such  as  by  federal  cost-  reimbursement  mechanisms  and  the  ability  of  carriers  to  charge  for  the  provision  of  assistance  capability  services).  The  most  detailed  and  reliable 
 cost  estimates  for  carriers  to  implement  the  assistance  capability  features  we  require  herein  are  $159  million  total  for  wireless  carriers  and  $117  million  for  wireline  carriers,  including  small  entities. 
 However,  as  discussed  in  paragraph  65,  supra,  we  expect  the  actual  costs  borne  by  carriers  to  be  substantially  lower  after  the  application  of  the  cost-  minimization  provisions  discussed  above. 


 (E)  Steps  Taken  to  Minimize  Significant  Economic  Impact  on  Small  Entities  and  Significant  Alternatives  Considered. 


 144.  The  need  for  the  regulations  adopted  herein  is  mandated  by  Federal  legislation.  In  the  regulations  we  adopt,  we  affirm  our  proposals  in  the  Further  NPRM  to  establish  regulations  for  wireline, 
 cellular,  and  broadband  PCS  telecommunications  carriers.  Costs  to  telecommunications  carriers  will  be  mitigated  in  several  ways.  For  example,  the  final  regulations  require  telecommunications  carriers  to  make 
 available  to  law  enforcement  call  identifying  information  when  it  can  be  done  without  unduly  burdening  the  carrier  with  network  modifications,  thus  allowing  cost  to  be  a  consideration  in  determining  whether 
 the  information  is  reasonably  available  to  the  carrier  and  can  be  provided  to  law  enforcement.  Thus,  compliance  with  the  assistance  capability  requirements  of  CALEA  will  be  reasonable  for  all  carriers, 
 including  small  carriers.  317  Also,  under  CALEA,  some  carriers  will  be  able  to  request  reimbursement  from  the  Department  of  Justice  for  network  upgrades  to  comply  with  the  technical  requirements  adopted 
 herein,  and  others  may  defer  network  upgrades  to  their  normal  business  cycle.  318 
 145.  We  believe  that  these  provisions  can  serve  to  mitigate  any  additional  cost  burdens  that  would  otherwise  be  borne  by  small  carriers.  The  Commission  considered  several  alternatives  advanced 


 by  commenters  in  the  proceeding    including  not  requiring  the  assistance  capabilities  adopted  herein    but  rejected  them  after  concluding  that  they  would  not  meet  the  statutory  requirements  of  CALEA.  We  note 
 that  the  statutory  mandate  under  CALEA  requires  all  carriers  to  provide  assistance  capabilities,  and  this  includes  small  entities.  319  Thus,  we  must  rely  on  cost-  mitigation  procedures  to  address  NTCAs  assertion 


 315  Trends  in  Telephone  Service,  Common  Carrier  Bureau,  Industry  Analysis  Division  (Aug.  2001)  (  Trends 
 Report).  This  report  is  available  on-  line  at:  http://  www.  fcc.  gov/  Bureaus/  Common_  Carrier/  Reports/  FCC-  State_  Link/  IAD/  trend801.  pdf 


 316  Trends  Report,  Table  5.3. 
 317  See  n.  147,  supra,  and  accompanying  text. 
 318  See    60,  supra. 
 319  See    2,  supra. 
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 that  any  regulation  that  requires  carriers  to  deploy  or  upgrade  facilities  will  disproportionally  affect  small  carriers. 
 Report  to  Congress 
 146.  The  Commission  will  send  a  copy  of  this  Supplemental  FRFA,  along  with  this  Order  on  Remand,  in  a  report  to  Congress  pursuant  to  the  Congressional  Review  Act,  5  U.  S.  C.    801(  a)(  1)(  A).  In 
 addition,  the  Commission  will  send  a  copy  of  this  Order  on  Remand,  including  this  Supplemental  FRFA,  to  the  Chief  Counsel  for  Advocacy  of  the  Small  Business  Administration.  A  copy  of  this  Order  on 
 Remand,  including  the  Supplemental  FRFA,  will  also  be  published  in  the  Federal  Register.  See  5  U.  S.  C.    604(  b). 


 V.  ORDERING  CLAUSES 
 147.  Accordingly,  IT  IS  ORDERED  that,  pursuant  to  Sections  1,  4,  229,  301,  303,  and  332  of  the  Communications  Act  of  1934,  as  amended,  and  Section  107(  b)  of  the  Communications  Assistance  for  Law 


 Enforcement  Act,  47  U.  S.  C.    151,  154,  229,  301,  303,  332,  and  1006(  b),  this  Order  on  Remand  and  the  rules  specified  in  Appendix  A  ARE  ADOPTED. 


 148.  IT  IS  FURTHER  ORDERED  that  the  rules  set  forth  in  Appendix  A  WILL  BECOME  EFFECTIVE  30  days  after  publication  in  the  Federal  Register. 
 149.  IT  IS  FURTHER  ORDERED  that  the  Commissions  Consumer  and  Governmental  Affairs  Bureau,  Reference  Information  Center,  shall  send  a  copy  of  this  Order  on  Remand,  including  the 
 Supplemental  Final  Regulatory  Flexibility  Analysis,  to  the  Chief  Counsel  for  Advocacy  of  the  Small  Business  Administration. 


 FEDERAL  COMMUNICATIONS  COMMISSION 


 William  F.  Caton  Acting  Secretary 
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 APPENDIX  A:  FINAL  RULES 
 AMENDMENTS  TO  THE  CODE  OF  FEDERAL  REGULATIONS 
 PART  22-  PUBLIC  MOBILE  SERVICES 
 A.  Part  22  of  the  Code  of  Federal  Regulations  is  amended  as  follows: 
 1.  The  authority  citation  in  Part  22  continues  to  read: 
 AUTHORITY:  47  U.  S.  C.  154,  222,  303,  309  and  332. 
 2.  Sections  22.  1102  and  22.  1103  are  revised  to  read  as  follows: 
   22.1102  Definitions. 
 *  *  *  Origin.  A  party  initiating  a  call  (e.  g.,  a  calling  party),  or  a  place  from  which  a  call  is  initiated. 


 Termination.  A  party  or  place  at  the  end  of  a  communication  path  (e.  g.  the  called  or  call-  receiving  party,  or  the  switch  of  a  party  that  has  placed  another  party  on  hold). 
 Direction.  A  party  or  place  to  which  a  call  is  re-  directed  or  the  party  or  place  from  which  it  came,  either  incoming  or  outgoing  (e.  g.,  a  redirected-  to  party  or  redirected-  from  party). 
 Destination.  A  party  or  place  to  which  a  call  is  being  made  (e.  g.,  the  called  party). 
   22.1103  Capabilities  that  must  be  provided  by  a  cellular  telecommunications  carrier. 


 (a)  *  *  *  (b)  As  of  November  19,  2001,  a  cellular  telecommunications  carrier  shall  provide  to  a  LEA  communications 
 and  call-  identifying  information  transported  by  packet-  mode  communications.  (c)  As  of  June  30,  2002,  a  cellular  telecommunications  carrier  shall  provide  to  a  LEA  the  following 
 capabilities:  (1)  Content  of  subject-  initiated  conference  calls; 
 (2)  Party  hold,  join,  drop  on  conference  calls;  (3)  Subject-  initiated  dialing  and  signaling  information; 
 (4)  In-  band  and  out-  of-  band  signaling;  (5)  Timing  information; 
 (6)  Dialed  digit  extraction,  with  a  toggle  feature  that  can  activate/  deactivate  this  capability. 


 PART  24-  PERSONAL  COMMUNICATIONS  SERVICES 
 B.  Part  24  of  the  Code  of  Federal  Regulations  is  amended  as  follows: 
 1.  The  authority  citation  in  Part  24  continues  to  read: 
 AUTHORITY:  47  U.  S.  C.  154,  301,  302,  303,  309  and  332. 
 2.  Sections  24.  902  and  24.  903  are  amended  to  read  as  follows: 
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   24.902  Definitions. 
 *  *  *  Origin.  A  party  initiating  a  call  (e.  g.,  a  calling  party),  or  a  place  from  which  a  call  is  initiated. 


 Termination.  A  party  or  place  at  the  end  of  a  communication  path  (e.  g.  the  called  or  call-  receiving  party,  or  the  switch  of  a  party  that  has  placed  another  party  on  hold). 
 Direction.  A  party  or  place  to  which  a  call  is  re-  directed  or  the  party  or  place  from  which  it  came,  either  incoming  or  outgoing  (e.  g.,  a  redirected-  to  party  or  redirected-  from  party). 
 Destination.  A  party  or  place  to  which  a  call  is  being  made  (e.  g.,  the  called  party). 
   24.903  Capabilities  that  must  be  provided  by  a  broadband  PCS  telecommunications  carrier. 


 (a)  *  *  *  (b)  As  of  November  19,  2001,  a  broadband  PCS  telecommunications  carrier  shall  provide  to  a  LEA 
 communications  and  call-  identifying  information  transported  by  packet-  mode  communications.  (c)  As  of  June  30,  2002,  a  broadband  PCS  telecommunications  carrier  shall  provide  to  a  LEA  the  following 
 capabilities:  (1)  Content  of  subject-  initiated  conference  calls; 
 (2)  Party  hold,  join,  drop  on  conference  calls;  (3)  Subject-  initiated  dialing  and  signaling  information; 
 (4)  In-  band  and  out-  of-  band  signaling;  (5)  Timing  information; 
 (6)  Dialed  digit  extraction,  with  a  toggle  feature  that  can  activate/  deactivate  this  capability. 


 PART  64  -  MISCELLANEOUS  RULES  RELATING  TO  COMMON  CARRIERS 
 C.  Part  64  of  the  Code  of  Federal  Regulations  is  amended  as  follows: 
 1.  The  authority  citation  for  Part  64  is  amended  to  read  as  follows: 
 AUTHORITY:  47  U.  S.  C.    151,  154,  201,  202,  205,  218-  220,  and  332  unless  otherwise  noted.  Interpret  or  apply    201,  218,  225,  226,  227,  229,  332,  48  Stat.  1070,  as  amended.  47  U.  S.  C.    201-  204,  208,  225, 
 226,  227,  229,  332,  501  and  503  unless  otherwise  noted. 
 2.  Sections  64.  2202  and  64.  2203  are  amended  to  read  as  follows: 
   64.2202  Definitions. 
 *  *  *  Origin.  A  party  initiating  a  call  (e.  g.,  a  calling  party),  or  a  place  from  which  a  call  is  initiated. 


 Termination.  A  party  or  place  at  the  end  of  a  communication  path  (e.  g.  the  called  or  call-  receiving  party,  or  the  switch  of  a  party  that  has  placed  another  party  on  hold). 
 Direction.  A  party  or  place  to  which  a  call  is  re-  directed  or  the  party  or  place  from  which  it  came,  either  incoming  or  outgoing  (e.  g.,  a  redirected-  to  party  or  redirected-  from  party). 
 Destination.  A  party  or  place  to  which  a  call  is  being  made  (e.  g.,  the  called  party). 
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   64.2203  Capabilities  that  must  be  provided  by  a  wireline  telecommunications  carrier. 
 (a)  *  *  *  (b)  As  of  November  19,  2001,  a  wireline  telecommunications  carrier  shall  provide  to  a  LEA  communications 
 and  call-  identifying  information  transported  by  packet-  mode  communications.  (c)  As  of  June  30,  2002,  a  wireline  telecommunications  carrier  shall  provide  to  a  LEA  the  following 
 capabilities:  (1)  Content  of  subject-  initiated  conference  calls; 
 (2)  Party  hold,  join,  drop  on  conference  calls;  (3)  Subject-  initiated  dialing  and  signaling  information; 
 (4)  In-  band  and  out-  of-  band  signaling;  (5)  Timing  information; 
 (6)  Dialed  digit  extraction,  with  a  toggle  feature  that  can  activate/  deactivate  this  capability. 
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 APPENDIX  B:  COMMENTING  PARTIES  TO  PUBLIC  NOTICE  OF  OCTOBER  17,  2000 
 Comments 


 AT&  T  Corp.  and  AT&  T  Wireless  Group  BellSouth  Corporation 
 Cellular  Telecommunications  and  Internet  Association  Center  for  Democracy  and  Technology 
 Cingular  Wireless  LLC  Cisco  Systems,  Inc. 
 Department  of  Justice  and  Federal  Bureau  of  Investigation  Personal  Communications  Industry  Association 
 Rural  Cellular  Association  SBC  Communications,  Inc. 
 Telecommunications  Industry  Association  United  States  Telecom  Association 
 Verizon  Telephone  Companies 
 Reply  Comments 
 AT&  T  Corp.  and  AT&  T  Wireless  Group  BellSouth  Corporation 
 Cellular  Telecommunications  and  Internet  Association  Cingular  Wireless  LLC 
 Department  of  Justice  and  Federal  Bureau  of  Investigation  KMC  Telecom 
 National  Telephone  Cooperative  Association  United  States  Telecom  Association 
 WorldCom,  Inc. 
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 STATEMENT  OF  COMMISSIONER  MICHAEL  J.  COPPS 
 RE:  Communications  Assistance  for  Law  Enforcement. 
 I  support  the  Commissions  actions  today.  Our  responsibilities  under  Section  107  of  the  Communications  Assistance  for  Law  Enforcement  Act  (  CALEA)  are  critical,  and  I  am  pleased  that 
 the  Commission  was  able  to  move  from  our  September  18,  2001  Order  to  todays  Order  so  rapidly.  Our  actions  today  will  help  law  enforcement  agencies  (  LEAs)  and  the  wireless  industry  make 
 progress  in  better  equipping  LEAs  to  collect  call-  identifying  information. 
 While  I  support  todays  action,  I  am  concerned  about  two  aspects  of  the  Order.  First,  as  the  Order  notes,  we  must  establish  standards  that  meet  the  assistance  capability  requirements  of  Section 


 103  by  cost  effective  methods  320  and  minimize  the  cost  of  such  compliance  on  residential  ratepayers.  321    The  Remand  Order  states  that  the  Third  R&  O  made  no  attempt  to  compare  the  cost 
 of  implementing  the  punch  list  capabilities  with  the  cost  of  obtaining  the  same  information  through  alternative  means,  nor  did  it  explain  how  it  measured  cost-  effectiveness.  Although  it  mentioned 
 residential  ratepayers,  it  never  explained  what  impact  its  Order  would  have  on  residential  rates.  322 
 In  todays  Order,  with  an  explanation  of  our  reasoning,  we  conclude  that  the  same  capabilities  that  we  have  identified  in  our  previous  Order  and  the  same  means  of  implementing  these  capabilities 


 are  cost-  effective  and  serve  to  minimize  costs  on  residential  ratepayers. 
 I  remain  concerned,  however,  that  CALEA-  related  costs  for  these  government  mandates  will  be  high  for  residential  customers  and  wireless  providers,  especially  for  rural  providers.  Carriers  and 


 consumers  have  only  one  recourse  when  faced  with  these  costs    they  may  petition  the  Commission  under  Section  109(  b)(  1)  and  demonstrate  that  compliance  with  the  new  assistance  capabilities  is  not 
 reasonably  achievable.  The  Commission  must  then  consider  the  effect  on  rates  for  basic  residential  telephone  service  as  part  of  determining  whether  the  capabilities  are  reasonably 
 achievable  for  that  carrier. 
 My  second  issue  of  concern  is  privacy.  CALEA  requires  any  Commission  rule  to  protect  the  privacy  and  security  of  communications  not  authorized  to  be  intercepted.  The  Court  noted  in  the 


 Remand  Decision  that  in  justifying  its  decision:  The  Commission  spoke  of  law  enforcement's  need  to  obtain  post-  cut-  through  dialed  digits  and  of  the  cost  of  providing  them,  but  it  never  explained,  as 
 CALEA  requires,  how  its  rule  will  protect  the  privacy  and  security  of  communications  not  authorized  to  be  intercepted.    323  The  Court  also  stated  that  the  Commissions  rejection  of 
 alternatives  to  its  post-  cut-  through  dialed  digit  decision  was  based  not  on  technological  infeasibility,  but  because  the  alternatives  "  would  shift  the  cost  burden  from  the  originating  carrier  to  the  LEA,   
 could  be  time-  consuming,    and  might  burden  law  enforcement's  ability  to  conduct  electronic  surveillance  effectively  and  efficiently.    324  The  Court  stated  that  this  was  an  entirely  unsatisfactory 
 response.  325 


 320  47  U.  S.  C.    1006(  b)(  1)  (emphasis  added). 
 321  47  U.  S.  C.    1006(  b)(  3). 
 322  United  States  Telecom.  Assoc.  v.  FCC,  227  F.  3d  450,  461  (DC  Cir.  2000)  (hereafter  Remand  Decision). 
 323  Remand  Decision  at  462. 
 324  Id. 
 325  Id. 
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 Congress  insisted  that  we  protect  individual  privacy  in  CALEA.  The  Court  told  us  that  we  must  explain  how  our  rule  does  this,  and  not  accept  a  solution  that  fails  to  protect  privacy  merely  because 
 of  costs,  time  burdens,  or  difficulties  LEAs  might  encounter  from  a  rule  that  is  more  privacy  protective.  This  is  an  extremely  difficult  task  for  the  Commission.  I  would  be  more  satisfied  if  we 
 had  a  post-  cut-  through  dialed  digit  technology  available  to  us  that  provides  LEAs  with  call-identifying  information  while  protecting  other  information.  Unfortunately,  we  do  not,  so  we  have 
 chosen  a  technology  that  ensures  that  LEAs  will  receive  the  information  they  need,  and  rely  on  the  fact  that  a  court  must  decide  whether  a  pen  register  warrant  or  a  Title  III  warrant  is  the  appropriate 
 legal  authority  when  that  information  is  mixed  with  non-  call-  identifying  information.  Given  our  options  at  this  time,  I  believe  that  this  is  the  best  choice  available  to  us. 
59