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 Federal  Communications  Commission  FCC  06-  56 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 
 In  the  Matter  of 
 Communications  Assistance  for  Law  Enforcement  Act  and  Broadband  Access  and 
 Services 


 )  ) 
 )  ) 
 )  ) 
 ET  Docket  No.  04-  295 
 RM-  10865 


 SECOND  REPORT  AND  ORDER  AND  MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  May  3,  2006  Released:  May  12,  2006 
 By  the  Commission:  Chairman  Martin,  and  Commissioners  Copps,  Adelstein  and  Tate  issuing  separate  statements. 


 TABLE  OF  CONTENTS 
 Paragraph 
 I.  INTRODUCTION  .............................................................................................................................................  2  II.  BACKGROUND  ...............................................................................................................................................  4 
 III.  DISCUSSION....................................................................................................................................................  6  A.  REQUIREMENTS  AND  SOLUTIONS.................................................................................................  7 
 B.  SECTIONS  107(  C)  AND  109(  B)  PETITIONS  ....................................................................................  27  C.  ENFORCEMENT  OF  CALEA  .............................................................................................................  63 
 D.  COST  RECOVERY  ISSUES  ................................................................................................................  69  E.  SYSTEM  SECURITY  REQUIREMENTS..........................................................................................  75 
 F.  FUTURE  SERVICES  AND  TECHNOLOGIES..................................................................................  77  G.  CONSOLIDATION  OF  CALEA  RULES............................................................................................  81 
 H.  MISCELLANEOUS...............................................................................................................................  83  IV.  PROCEDURAL  ISSUES................................................................................................................................  84 
 V.  ORDERING  CLAUSES..................................................................................................................................  89  APPENDIX  A    LIST  OF  COMMENTERS 
 APPENDIX  B    FINAL  RULES  APPENDIX  C    REGULATORY  FLEXIBILITY  ANALYSES 
 APPENDIX  D    STANDARDS  FOR  PACKET-  MODE  TECHNOLOGIES  APPENDIX  E    SECTION  109(  B)(  1)  PETITIONS  FOR  COST-  SHIFTING  RELIEF: 
 FILING  INSTRUCTIONS  APPENDIX  F    SECTION  107(  C)  PETITIONS  FOR  EXTENSION  OF  TIME: 
 FILING  INSTRUCTIONS  APPENDIX  G    SAMPLE  MONITORING  REPORT  (FORM  XXX) 
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 I.  INTRODUCTION 
 1.  In  the  Second  Report  and  Order  (Second  R&  O),  we  address  several  issues  regarding  CALEA  implementation  raised  in  the  Notice  of  Proposed  Rulemaking  (Notice)  in  this  proceeding.  In 


 particular,  the  Second  R&  O  addresses  the  assistance  capabilities  required,  pursuant  to  section  103  of  the  Communications  Assistance  for  Law  Enforcement  Act  (CALEA),  1  for  facilities-  based  broadband  Internet 
 access  providers  and  providers  of  interconnected  Voice  over  Internet  Protocol  (VoIP).  Telecommunications  industry  standard-  setting  bodies,  working  in  concert  with  law  enforcement  agencies 
 (LEAs)  and  other  interested  parties,  are  developing  technical  requirements  and  solutions  for  these  providers,  and  we  conclude  that,  absent  the  filing  of  a  deficiency  petition  under  CALEA  section  107(  b),  it 
 would  be  premature  for  the  FCC  to  intervene  in  the  standards  development  process.  Additionally,  we  permit  all  carriers  providing  facilities-  based  broadband  Internet  access  and  interconnected  VoIP  services 
 until  May  14,  2007  to  come  into  compliance  with  CALEA.  2  Further,  we  require  that  all  carriers  providing  facilities-  based  broadband  Internet  access  and  interconnected  VoIP  service  to  submit  interim 
 reports  to  the  Commission  to  ensure  that  they  will  be  CALEA-  compliant  by  May  14,  2007.  We  also  require  that  all  facilities-  based  broadband  Internet  access  and  interconnected  VoIP  providers  to  whom 
 CALEA  obligations  were  extended  in  the  First  R&  O  come  into  compliance  with  the  system  security  requirements  in  our  rules  within  90  days  of  the  effective  date  of  this  Second  R&  O. 


 2.  More  generally,  we  herein  specify  mechanisms  to  ensure  that  telecommunications  carriers  comply  with  CALEA.  Specifically,  under  the  express  terms  of  the  statute,  all  carriers  subject  to 
 CALEA  are  obliged  to  become  CALEA-  compliant.  We  find  that  sections  107(  c)  and  109(  b)  of  CALEA  provide  only  limited  and  temporary  relief  from  compliance  requirements,  and  that  they  are 
 complementary  provisions  that  serve  different  purposes,  which  are,  respectively:  (1)  extension  of  the  CALEA  section  103  compliance  deadline  for  equipment,  facility,  or  service  deployed  before  October  25, 
 1998;  and  (2)  recovery  of  CALEA-  imposed  costs.  We  also  conclude  that,  in  addition  to  the  enforcement  remedies  through  the  courts  available  to  LEAs  under  CALEA  section  108,  we  may  take  separate 
 enforcement  action  against  carriers  that  fail  to  comply  with  CALEA.  Moreover,  we  conclude  that  carriers  are  generally  responsible  for  CALEA  development  and  implementation  costs  for  post-  January  1,  1995 
 equipment  and  facilities. 
 3.  In  the  Memorandum  Opinion  and  Order  (MO&  O),  we  deny  in  part  and  grant  in  part  a  petition  for  reconsideration  and  clarification  filed  by  the  United  States  Telecom  Association 


 (USTelecom).  USTelecom  requested  the  Commission  to  re-  set  the  CALEA  compliance  deadline  for  facilities-  based  broadband  Internet  access  and  interconnected  VoIP  services  from  the  May  14,  2007  date 
 established  by  the  First  R&  O  to  18  months  from  the  date  of  this  Second  R&  O  and  to  clarify  the  specific  broadband  access  services  subject  to  the  18-  month  deadline.  We  deny  USTelecoms  request  to  re-  set  the 
 CALEA  compliance  deadline  for  facilities-  based  broadband  Internet  access  and  interconnected  VoIP  services,  but  conclude  that  the  public  interest  will  be  best  served  by  applying  the  existing  May  14,  2007 


 1  Pub.  L.  No.  103-  414,  108  Stat.  4279  (1994)  (codified  as  amended  in  sections  of  18  U.  S.  C.  and  47  U.  S.  C.). 
 2  This  is  the  same  CALEA  compliance  date  established  by  the  First  Report  and  Order  (First  R&  O)  in  this 
 proceeding  for  newly  covered  entities  and  providers  of  newly  covered  services.  See  Communications  Assistance  for  Law  Enforcement  Act  and  Broadband  Access  and  Services,  First  Report  and  Order  and  Further  Notice  of  Proposed 


 Rulemaking,  ET  Docket  No.  04-  295,  RM-  10865,  20  FCC  Rcd  14989  (2005). 
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 CALEA  compliance  date  to  all  facilities-  based  broadband  Internet  access  and  interconnected  VoIP  services. 
 II.  BACKGROUND 
 4.  In  March  2004,  the  Department  of  Justice  (DOJ),  the  Federal  Bureau  of  Investigation  (FBI),  and  the  Drug  Enforcement  Administration  (DEA)  (collectively,  Law  Enforcement)  filed  with  the 


 Commission  a  petition  for  expedited  rulemaking,  requesting  that  we  initiate  a  proceeding  to  resolve  various  outstanding  issues  associated  with  the  implementation  of  CALEA.  3  We  responded  in  August 
 2004  by  issuing  a  Notice  of  Proposed  Rulemaking  and  Declaratory  Ruling  in  this  proceeding.  4  The  Notice  examined  issues  relating  to  the  scope  of  CALEAs  applicability  to  packet-  mode  services,  such  as 
 broadband  Internet  access,  and  implementation  and  enforcement  issues.  5 
 5.  In  September  2005,  the  First  R&  O  concluded  that  CALEA  applies  to  facilities-  based  broadband  Internet  access  providers  and  providers  of  interconnected  VoIP  service,  6  and  the  concurrent 


 Further  Notice  of  Proposed  Rulemaking  (Further  Notice)  sought  comment  on  whether  CALEA  obligations  should  be  extended  to  providers  of  other  types  of  VoIP  services  7  and  on  whether  something 
 less  than  full  CALEA  compliance  should  be  required  of  certain  classes  or  categories  of  facilities-  based  broadband  Internet  access  providers.  8  The  First  R&  O  stated:  In  the  coming  months,  we  will  release 
 another  order  that  will  address  separate  questions  regarding  the  assistance  capabilities  required  of  the  providers  covered  by  todays  Order  pursuant  to  section  103  of  CALEA.  9  This  subsequent  order  will 
 include  other  important  issues  under  CALEA,  such  as  compliance  extensions  and  exemptions,  cost  recovery,  identification  of  future  services  and  entities  subject  to  CALEA,  and  enforcement.  10  Todays 
 Second  R&  O  addresses  these  questions  and  issues  and  specifies  what  telecommunications  providers  must  do  to  facilitate  electronic  surveillance  of  their  equipment,  facilities,  and  services  by  LEAs,  pursuant  to 
 court  orders  or  other  lawful  authorization. 
 III.  DISCUSSION 


 6.  Introduction.  In  this  Second  R&  O,  we  first  examine  the  obligations  of  facilities-  based  broadband  Internet  access  and  interconnected  VoIP  providers  to  implement  CALEA  compliance  solutions 


 3  Joint  Petition  for  Expedited  Rulemaking,  RM-  10865  (filed  Mar.  10,  2004). 
 4  See  Communications  Assistance  for  Law  Enforcement  Act  and  Broadband  Access  and  Services,  Notice  of 
 Proposed  Rulemaking  and  Declaratory  Ruling,  ET  Docket  No.  04-  295,  RM-  10865,  19  FCC  Rcd  15676  (2004).  5 
 Notice,  19  FCC  Rcd  at  15677,  para.  1.  6 
 First  R&  O,  20  FCC  Rcd  at  14989,  para.  1.  7 
 Further  Notice,  20  FCC  Rcd  at  15013,  para.  48.  8 
 Id.  at  15013,  para.  49.  9 
 47  U.  S.  C.    1002.  10 
 First  R&  O,  20  FCC  Rcd  at  14990,  para.  3. 
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 under  section  103  of  the  statute,  including  solutions  based  on  either  CALEA  safe  harbor  standards  or  the  use  of  trusted  third  parties.  We  next  examine  the  scope  of  relief  available  to  telecommunications 
 carriers  pursuant  to  CALEA  sections  107(  c)  and  109(  b),  issue  new  guidelines  to  govern  the  filing  and  evaluation  of  petitions  associated  with  those  rule  sections,  and  dispose  of  pending  section  107(  c) 
 petitions.  Third,  we  address  CALEA  enforcement  issues,  both  generally  and  with  specific  regard  to  facilities-  based  broadband  Internet  access  and  interconnected  VoIP  providers,  including  the  filing  of 
 reports  by  these  providers  to  ensure  their  timely  compliance  with  the  assistance  capability  requirements  of  CALEA  section  103.  Fourth,  we  examine  CALEA  cost  issues  and  specify  cost  recovery  mechanisms  for 
 wireline,  wireless,  and  other  telecommunications  carriers.  Fifth,  we  specify  a  date  for  facilities-  based  broadband  Internet  access  and  interconnected  VoIP  providers  to  comply  with  CALEA  system  security 
 requirements.  Finally,  we  address  the  CALEA  compliance  obligations  of  providers  of  future  telecommunications  services  and  technologies. 


 A.  REQUIREMENTS  AND  SOLUTIONS 
 7.  Overview.  As  we  observed  in  the  Notice,  packet  technologies  are  fundamentally  different  from  the  circuit  switched  technologies  that  were  the  primary  focus  of  the  Commissions  earlier  decisions 


 on  CALEA.  11  Nonetheless,  carriers,  manufacturers  and  Law  Enforcement  have  applied  the  statutory  definition  of  call-  identifying  information  (CII)  in  developing  standards  or  proprietary  solutions  for  packet 
 technologies.  In  some  cases,  however,  the  exact  application  of  these  terms  to  packet  technologies  remains  to  be  determined.  For  example,  CII  may  be  found  within  several  encapsulated  layers  of  protocols,  and  as  a 
 packet  makes  its  way  through  the  network  of  the  broadband  Internet  access  service  provider,  these  providers  equipment  generally  do  not  examine  or  process  information  in  the  layers  used  to  control 
 packet-  mode  services  such  as  VoIP,  and  in  fact  operate  at  layers  below  the  ones  that  carry  control  information  for  broadband  access  services.  As  a  result,  broadband  Internet  access  service  providers  may 
 not  be  able  to  easily  isolate  CII.  12 
 8.  In  this  proceeding,  we  have  explored  the  complexity  of  the  technical  issues  regarding  packet  technologies  to  ensure  that  broadband  Internet  access  and  VoIP  providers  can  comply  with 


 CALEA  and  not  compromise  the  ability  of  LEAs  to  receive  the  information  to  which  they  are  entitled  under  the  statute.  Specifically,  as  discussed  in  detail  below,  we  probed  the  capabilities  of  broadband 
 Internet  access  and  VoIP  providers  to  extract  CII  and  provide  it  to  LEAs  under  CALEA,  and  inquired  about  compliance  solutions  for  these  providers  based  upon  either  CALEA  safe  harbor  standards  or  the 
 use  of  trusted  third  parties.  As  we  discuss  below,  the  record  demonstrates  that  Law  Enforcement  and  industry  have  made  progress  toward  the  goal  of  achieving  successful  implementation  of  CALEA  with 
 regard  to  the  deployment  of  packet  technologies  by  broadband  Internet  access  and  VoIP  providers,  but  this  is  an  ongoing  process.  Although  section  107(  b)  of  CALEA  allows  the  Commission,  upon  petition,  to 
 establish  rules,  technical  requirements  or  standards  necessary  for  implementing  section  103  if  any  entity  believes  that  industry-  created  requirements  or  standards  are  deficient,  CALEA  clearly  provides  that  LEAs 
 and  industry  work  together  in  the  first  instance  to  formulate  CALEA  compliance  standards.  Accordingly,  we  will  continue  to  monitor  developments  in  this  area  as  Law  Enforcement  and  industry  continue 
 working  together,  primarily  through  various  standards  organizations,  to  develop  long-  term  solutions  to  these  complex  technical  issues.  We  also  determine  that  all  carriers  providing  facilities-  based  broadband 


 11  Notice,  19  FCC  Rcd  at  15712,  para.  63. 
 12  Id.  at  15712-  13,  para.  65. 
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 Internet  access  and  interconnected  VoIP  services  must  be  in  compliance  with  section  103  of  CALEA  by  May  14,  2007. 
 1.  CALEA  Obligations  Under  Section  103 
 9.  Background.  Section  103(  a)(  1)  of  CALEA  requires  telecommunications  carriers  to  establish  the  capability  of  providing  to  LEAs  call  content  information,  pursuant  to  a  court  order  or  other 


 lawful  authorization;  and  section  103(  a)(  2)  of  CALEA  requires  telecommunications  carriers  to  establish  the  capability  of  providing  to  LEAs  reasonably  available  call-  identifying  information  (CII),  pursuant  to  a 
 court  order  or  other  lawful  authorization.  13  In  this  section  of  the  Second  R&  O,  we  discuss  a  carriers  obligations  under  section  103  and  compliance  solutions  as  they  relate  to  broadband  Internet  access  and 
 interconnected  VoIP  services. 
 10.  CALEA  defines  CII  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,  but  CALEA  does  not  define  origin,  direction,  destination,  or  termination.  14  The  Commission  has  adopted  definitions 
 of  the  component  terms  (origin,  direction,  destination,  and  termination)  in  the  statutory  definition  of  CII  in  addressing  petitions  regarding  standards  for  circuit  switched  networks  in  J-  STD-  025.  15  However,  as 
 noted  above,  packet  technologies  are  substantially  different  from  the  circuit  switched  technologies  that  were  the  primary  focus  of  the  Commissions  earlier  decisions  on  CALEA.  Accordingly,  in  the  Notice,  we 
 sought  comment  on  whether  the  Commission  should  clarify  the  statutory  term  call-  identifying  information  for  broadband  Internet  access  and  VoIP  services.  We  asked  commenters  to  provide  specific 
 suggestions  for  these  definitional  issues.  16 
 11.  We  also  invited  comment  as  to  how  the  Commission  should  apply  the  term  reasonably  available  to  broadband  Internet  access.  17  We  observed  that  the  Commission  has  previously  determined 


 that  information  may  not  be  reasonably  available  in  circuit  switched  networks  if  the  information  is  accessible  only  by  significantly  modifying  a  network,  and  further  observed  that  cost  concerns  are  best 
 addressed  as  part  of  a  section  107(  c)  analysis.  18  We  tentatively  concluded  that  we  should  apply  the  same  reasonably  available  criteria  to  broadband  Internet  access  and  VoIP  providers;  i.  e.,  information  may  not 
 be  reasonably  available  to  those  providers  if  it  is  accessible  only  by  significantly  modifying  their 
 13  47  U.  S.  C.    1002(  a)(  1),  (a)(  2). 
 14  47  U.  S.  C.    1001(  2). 
 15  See  Communications  Assistance  for  Law  Enforcement  Act,  Order  on  Remand,  CC  Docket  No.  97-  213,  17  FCC 
 Rcd  6896  (2002)  at  6911,  para.  47.  See  also  47  C.  F.  R.    22.1102,  24.902,  64.2202.  J-  STD-  025  was  an  interim  standard  published  by  the  Alliance  for  Telecommunications  Industry  Solutions  (ATIS)  and  the  Telecommunications 


 Industry  Association  (TIA)  in  December  1997  and  was  replaced  by  J-  STD-  025-  A  in  May  2000.  J-  STD-  025-  A  incorporated  additions  made  to  J-  STD-  025  by  the  Commission  in  CC  Docket  No.  97-  213;  see  Third  Report  and 
 Order,  14  FCC  Rcd  16794  (1999).  In  December  2003,  ATIS  and  TIA  published  J-  STD-  025-  B;  see  http://  www.  atis.  org/  PRESS/  pressreleases2004/  031904.  htm  (last  visited  in  May  2006).  J-  STD-  025-  B  focuses  on 
 refining  CALEA  packet-  mode  communications  requirements  for  the  interface  to  the  collection  equipment  of  LEAs.  16 
 Notice,  19  FCC  Rcd  at  15713,  para.  67.  17 
 Id.  18 
 Id.  at  15713-  14,  para.  67. 
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 networks.  However,  we  recognized  that,  when  looking  at  those  providers  service  architectures,  it  is  not  always  readily  apparent  where  CII  is  available.  Accordingly  we  sought  comment  on  these  related  issues, 
 such  as  instances  in  which  CII  may  be  reasonably  available  from  either  a  broadband  Internet  access  provider  or  a  VoIP  provider,  but  not  from  both.  We  stated  that,  if  the  information  is  reasonably  available 
 from  both,  we  would  expect  that  both  would  have  a  CALEA  obligation  with  respect  to  that  information  and  would  work  cooperatively  with  each  other  and  with  the  LEA  to  provide  the  LEA  with  all  required 
 information.  19 
 12.  Discussion.  A  number  of  parties  commented  generally  on  the  Commissions  authority  to  intervene  in  the  development  of  CALEA  technical  standards.  Cingular  notes  that  the  U.  S.  Court  of 


 Appeals  for  the  District  of  Columbia  Circuit  (D.  C.  Circuit)  stated:  .  .  .  Congress  gave  the  telecommunications  industry  the  first  crack  at  developing  standards,  authorizing  the  Commission  to  alter 
 those  standards  only  if  it  found  them  deficient.  "  20  Cingular  and  many  other  parties  conclude  that  the  Commission  must  defer  to  the  efforts  of  industry  standards  bodies  to  formulate  standards,  absent  the  filing 
 of  a  petition  under  section  107(  b)  with  the  Commission.  21 
 13.  With  regard  to  the  availability  of  CII  in  broadband  access  and  VoIP  networks,  commenters  generally  agree  that  different  information  is  available  to  different  service  providers,  and  that 


 different  parts  of  that  information  are  reasonably  available  to  different  service  providers.  However,  several  parties  identify  situations  in  which,  they  contend,  a  broadband  Internet  access  provider  would  not 
 reasonably  be  able  to  extract  CII  used  by  non-  affiliated  VoIP  providers.  22  With  regard  to  the  Commissions  tentative  conclusion  that  CII  may  be  reasonably  available  to  a  broadband  access  or  VoIP 
 provider  as  long  as  that  providers  network  does  not  have  to  be  significantly  modified,  some  parties  argue  that  this  standard  is  inappropriate  for  Internet  applications.  23  DOJ  expresses  particular  concern  about  the 
 Commission  using  cost  considerations  to  decide  what  is  reasonably  available  because,  DOJ  asserts,  the  Commission  could  mistakenly  excuse  an  entire  class  of  carriers  from  delivering  a  capability,  even  though 
 only  one  or  two  carriers  qualify  for  such  relief  based  on  non-  technical  considerations.  24  However, 


 19  Id.  at  15714,  para.  68. 
 20  Cingular  Comments  at  17,  citing  USTA  v.  FCC,  227  F.  3d  450,460  (D.  C.  Cir.  2000). 
 21  Cingular  Comments  at  17.  Similarly,  USTelecom  observes  that  the  CALEA  statute  calls  for  the 
 telecommunications  industry  to  develop  a  standard  in  consultation  with  LEAs,  that  the  Commission  becomes  involved  in  this  process  only  if  a  deficiency  petition  is  filed,  and  that  the  Commission  may  not  simply  overturn  a 


 standard,  but  rather  must  correct  any  deficiency.  USTelecom  Comments  at  8-  9  citing  47  U.  S.  C.  1006.  BellSouth,  DOJ,  and  SIA  generally  concur.  BellSouth  Comments  at  16;  DOJ  Comments  at  41;  SIA  Comments  at  20;  SIA 
 Reply  Comments  at  13.  DOJ,  USTelecom,  and  Verizon  also  argue  that  standards  bodies  and  industry  groups  have  the  resources,  which  the  Commission  may  lack,  to  determine  call-  identifying  information  for  multiple  technologies. 
 DOJ  Comments  at  41;  DOJ  Reply  Comments  at  23-  24;  USTelecom  Comments  at  9;  Verizon  Comments  at  21;  Verizon  Reply  Comments  at  19-  20. 
 22  Global  Crossing  Reply  Comments  at  9;  I&  P  Comments  at  49;  NCTA  Comments  at  11;  SIA  Comments  at  10-  11; 
 TIA  Comments  at  14;  US  ISPA  Comments  at  23,  45.  23 
 US  ISPA  Comments  at  20;  I&  P  Comments  at  45.  24 
 DOJ  Comments  at  44-  48. 
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 industry  commenters  strongly  disagree  with  DOJ  regarding  the  exclusion  of  cost  considerations  from  a  reasonably  available  inquiry.  25 
 14.  We  note  the  D.  C.  Circuits  opinion  referenced  by  Cingular,  as  well  as  the  comments  of  both  DOJ  and  the  telecommunications  industry  that  express  concern  about  Commission  intervention  in 
 the  continuing  work  by  Law  Enforcement  and  industry  to  develop  CALEA  technical  standards  for  broadband  Internet  access  and  VoIP  services.  Addressing  analogous  circumstances,  the  Court  explained 
 that  such  intervention  would  weaken  the  major  role  Congress  obviously  expected  industry  to  play  in  formulating  CALEA  standards.  26  In  the  course  of  developing  standards  for  CALEA  compliance  by 
 broadband  Internet  access  and  VoIP  providers,  we  expect  that  industry  standard-  setting  bodies,  working  in  concert  with  Law  Enforcement  and  other  interested  parties,  will  develop  an  appropriate  definition  of 
 call-  identifying  information  in  the  context  of  broadband  Internet  access  and  VoIP  networks  as  well  as  an  appropriate  definition  of  what  constitutes  either  reasonable  availability  of  CII  in  such  networks  or  a 
 significant  modification  of  such  networks.  If  this  process  proves  unsatisfactory,  any  interested  party  may  submit  to  the  Commission  a  deficiency  petition  under  CALEA  section  107(  b).  27  We  thus  take  no 
 action  on  these  issues  at  this  time.  28 
 15.  The  First  R&  O  in  this  proceeding  29  established  a  CALEA  compliance  date  of  May  14,  2007  for  newly  covered  entities  and  providers  of  newly  covered  services.  USTelecom  has  asked  the 


 Commission  to  identify  specifically  all  broadband  Internet  access  services  subject  to  that  compliance  date.  30  To  eliminate  any  possible  confusion  about  the  applicability  of  that  deadline,  we  conclude  that  the 
 public  interest  will  be  best  served  by  applying  the  May  14,  2007  compliance  date  to  all  facilities-  based  broadband  Internet  access  and  interconnected  VoIP  services.  We  agree  with  USTelecom  that  applying 


 25  TIA  Comments  at  15;  BellSouth  Comments  at  22;  US  ISPA  Comments  at  20-  21. 
 26  USTA,  227  F.  3d  at  461. 
 27  47  U.  S.  C.    1006(  b). 
 28  Declining  to  interpret  the  statutory  definition  of  call-  identifying  information  in  this  area  until  industry  standard-setting 
 bodies  do  so  in  the  first  instance  is  consistent  with  the  D.  C.  Circuits  decision  in  USTA.  That  decision  turn[  ed]  on  what  the  Act  means  by  call-  identifying  information.    227  F.  3d  at  457.  Responding  to  deficiency 


 petitions  challenging  an  industry  standard,  the  Commission  had  added  several  capabilities  beyond  those  required  by  that  standard  (called  the  J-  Standard).  Id.  at  456.  The  Commission  concluded  that  these  additional  capabilities 
 were  required  by  the  statutory  definition  of  call-  identifying  information,  but  the  D.  C.  Circuit  held  that  the  Commission  had  not  provided  an  adequate  explanation  for  why  this  was  so.  Id.  at  460.  The  Court  noted  that  this 
 failure  was  particularly  serious  in  view  of  CALEAs  unique  structure.  Id.  The  J-  Standard  had  provided  an  interpretation  of  the  statutory  definition  of  call-  identifying  information,  but  the  Commission  failed  to  identify  any 
 deficiencies  in  that  definition.  Id.  at  461-  62.  The  Court  concluded  that  this  was  in  error:  Were  we  to  allow  the  Commission  to  modify  the  J-  Standard  without  first  identifying  its  deficiencies,  we  would  weaken  the  major  role 
 Congress  obviously  expected  industry  to  play  in  formulating  CALEA  standards.  Id.  at  461.  To  attempt  a  definition  of  the  elements  of  call-  identifying  information  here    without  any  standard-  setting  bodies  definitions 
 even  before  us    would  be  at  least  as  disruptive  to  the  statutory  scheme  as  the  approach  rejected  by  the  D.  C.  Circuit  in  USTA. 
 29  See  n.  2,  supra. 
 30  See  Petition  for  Reconsideration  and  for  Clarification  of  the  CALEA  Applicability  Order,  filed  by  USTelecom  in 
 ET  Docket  No.  04-  295,  at  3-  5  (Nov.  14,  2005)  (USTelecom  Petition).  A  list  of  parties  that  filed  oppositions/  comments  and  replies  in  response  to  the  petition  is  shown  in  Appendix  A. 
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 the  compliance  date  uniformly  to  these  services  is  consistent  with  the  policy  objectives  identified  in  the  First  R&  O.  31  We  find  that  applying  the  same  compliance  dates  to  all  providers  of  facilities-  based 
 broadband  Internet  access  and  interconnected  VoIP  services  will  avoid  any  skewing  effect  on  competition  and  will  prevent  migration  of  criminal  activity  onto  networks  with  delayed  compliance  dates. 


 16.  One  firm  date  establishes  a  clear  goal  for  all  carriers,  equipment  manufacturers,  and  law  enforcement  that  must  cooperate  in  the  process  of  identifying,  implementing  and  deploying  solutions. 
 One  firm  date  also  should  encourage  all  interested  parties  to  move  quickly  to  develop  solutions  which,  in  turn,  will  benefit  smaller  carriers  who  face  greater  challenges  in  complying  with  CALEA  in  the  absence 
 of  standards  and  the  availability  of  compliant  equipment  in  the  marketplace.  32  Thus,  we  reject  suggestions  for  different  compliance  deadlines  for  VoIP  and  broadband  Internet  access  services,  33  or 
 linking  compliance  deadlines  to  certain  events  or  criteria,  such  as  the  development  of  standards,  a  Commission  decision  that  a  service  provider  is  subject  to  CALEA,  or  carrier  size.  34 


 17.  We  also  find  that  May  14,  2007  is  a  reasonable  time  period  for  compliance  with  the  Section  103  requirements.  35  We  note,  at  the  outset,  that  VoIP  standards  for  CALEA  are  nearing  or  are  at 
 completion  for  various  technologies.  36  Thus,  manufacturers  and  carriers  are  in  a  good  position  to  implement  and  deploy  solutions  for  VoIP  by  that  date,  even  though  we  recognize  that  VoIP  providers 
 who  plan  a  nationwide  deployment  will  need  to  incorporate  a  CALEA  solution  into  numerous  routers  or  servers  or  negotiate  arrangements  with  numerous  interconnecting  carriers.  We  similarly  conclude  that 
 providers  of  broadband  Internet  access  services  should  be  able  to  comply  with  Section  103  by  May  14, 
 31  See  id.  at  4.  We  note  that  no  commenter  on  the  USTelecom  Petition  specifically  opposed  this  portion  of  the 
 petition.  32 
 See,  e.  g.,  Global  Crossing  Reply  Comments  at  7;  GVNW  Consulting  Comments  at  5-  6  (equipment  vendors  will  not  negotiate  with  small  carriers  to  develop  a  custom  solution  if  they  have  not  developed  a  solution  for  a  larger 


 market);  Advocacy  Reply  Comments  at  7-  8,  Southern  LINC  Reply  Comments  at  6-  7  (small  carriers  lack  market  power  and  must  wait  until  larger  carriers  or  manufacturers  develop  solutions).  Some  suggest  that  we  allow  small 
 carriers  more  time  to  come  into  compliance.  See,  e.  g.,  Advocacy  Reply  Comments  at  7;  Southern  LINC  Reply  Comments  at  6-  7  (suggests  staggered  schedules  based  on  carrier  size).  Others  suggest  that  we  not  establish  a 
 compliance  deadline  for  small  carriers,  allowing  them  to  work  out  compliance  plans  with  Law  Enforcement.  See,  e.  g.,  UPLC  Reply  Comments  at  13;  United  Utilities  Reply  Comments  at  6;  Vonage  Reply  Comments  at  6. 
 33  See,  e.  g.,  TIA  Comments  at  8-  9;  US  ISPA  Comments  at  36-  37;  Verint  Reply  Comments  at  16.  Note:  Verint  filed 
 a  document  entitled  Comments  of  Verint  Systems,  Inc.;  however,  it  was  filed  during  the  reply  comment  period,  and  so  we  are  treating  it  as  a  reply  comment. 


 34  See,  e.  g.,  TIA  Comments  at  8-  9  (supports  an  18  month  compliance  period  for  content  surveillance  which  would 
 begin  to  run  from  when  the  FCC  adopts  final  rules  on  substantial  compliance  or  from  when  the  FCC  decides  a  service  is  subject  to  CALEA  under  the  substantial  replacement  provision);  SIA  Comments  at  16-  18  (suggests  that, 


 for  entities  newly  subject  to  CALEA,  we  require  compliance  one  year  from  the  latest  date  on  which:  (1)  safe  harbor  standards  are  established  that  satisfy  Section  103  requirements  or  the  date  on  which  the  Commission  resolves  a 
 deficiency  petition  filed  under  Section  107(  b),  (2)  the  Attorney  General  issues  a  final  notice  of  capacity  for  the  newly  subject  service/  entity,  and  (3)  the  Commission  establishes  system  security  and  integrity  rules  for  the  newly 
 subject  entities).  35 
 See  First  Report  and  Order,  20  FCC  Rcd  at  15012,  para.  46  &  n.  138.  36 
 For  example,  ATIS  standard  T1.678  supports  surveillance  of  VoIP  in  wireline  networks  using  two  different  call  set-  up  protocols,  and  CableLabs  Packet  Cable  Electronic  Surveillance  Specification  supports  surveillance  of  VoIP 


 in  cable  networks.  See  Appendix  D,  infra;  see  also  DOJ  Opposition  at  7-  8. 
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 2007.  Although  standards  for  newer  broadband  Internet  access  technologies  are  yet  to  be  developed,  especially  regarding  the  delivery  of  CII,  we  note  that  full  content  surveillance  has  already  been  addressed 
 by  standards  groups  for  certain  older  technologies  37  and  some  carriers  may  be  able  to  rely  on  passive  techniques  (e.  g.,  using  probes  at  certain  points  throughout  their  network)  to  implement  surveillance. 
 Other  factors  should  facilitate  carrier  compliance  by  that  date.  For  example,  some  solutions  will  be  software  based,  and  thus  carriers  will  not  necessarily  have  the  burden  of  deploying  new  equipment  to 
 come  into  compliance.  Further,  facilities-  based  broadband  Internet  access  and  VoIP  services  interconnect  with  the  public  Internet  and  public  switched  telephone  network  (PSTN),  respectively.  Thus,  broadband 
 access  architectures  and  protocols  are  compatible  with  standards  used  for  the  Internet  and  VoIP  architectures  and  protocols  are  compatible  with  standards  used  for  the  PSTN,  providing  a  foundation 
 upon  which  CALEA  solutions  for  broadband  access  and  VoIP  services  can  be  developed.  38 
 2.  Compliance  Solutions  Based  on  CALEA  Safe  Harbor  Standards 
 18.  Background.  In  the  Notice,  the  Commission  invited  comment  on  a  variety  of  industry  standards  for  packet-  mode  technologies  to  determine  whether  any  of  these  standards  are  deficient  and 


 thus  preclude  carriers,  manufacturers,  and  others  from  relying  on  them  as  safe  harbors  in  complying  with  section  103  of  CALEA.  We  noted  that,  over  the  past  several  years,  various  organizations  have  been 
 developing  standards  for  various  types  of  packet  technologies  that  support  a  variety  of  applications  used  in  both  wireline  and  wireless  networks.  We  stated  that  these  standards  could  serve,  pursuant  to  section 
 107(  a)  of  CALEA,  as  safe  harbors  for  section  103  compliance  by  telecommunications  carriers.  Section  107(  a)  is  titled  Safe  Harbor  and  subsection  107(  a)(  2)  provides:  A  telecommunications  carrier  shall  be 
 found  to  be  in  compliance  with  the  assistance  capability  requirements  under  section  103,  and  a  manufacturer  of  telecommunications  transmission  or  switching  equipment  or  a  provider  of 
 telecommunications  support  services  shall  be  found  to  be  in  compliance  with  section  106,  if  the  carrier,  manufacturer,  or  support  service  provider  is  in  compliance  with  publicly  available  technical  requirements 
 or  standards  adopted  by  an  industry  association  or  standard-  setting  organization,  or  by  the  Commission  under  subsection  (b),  to  meet  the  requirements  of  section  103.  39  We  noted  that  the  standards  process  is 
 ongoing  in  several  different  venues,  with  some  standards  already  having  undergone  modification  and  new  ones  under  development,  and  that  compliance  with  a  safe  harbor  standard  is  not  required  by  CALEA.  40 


 19.  In  the  Notice,  we  also  noted  Law  Enforcements  assessment  that  packet-  mode  standards  that  have  been  published  are  deficient.  We  stated  our  belief  that  underlying  this  assessment  are  Law 
 Enforcements  assumptions  that  the  definition  of  CII  can  be  clearly  applied  to  packet  networks,  that 
 37  For  example,  the  TIA/  ATIS  standard  J-  STD-  025  for  several  different  technologies  such  as  X.  25  packet  service, 
 ISDN,  short  message  service  for  cellular  and  PCS,  and  various  wireless  packet-  mode  data  services  (e.  g.,  CDMA,  TDMA,  and  GSM).  See  again  Appendix  D,  infra. 


 38  For  all  of  these  reasons,  we  reject  USTelecoms  suggestion  that  the  18-  month  compliance  period  should  run  from 
 the  date  of  this  Second  Report  and  Order.  See  USTelecom  Petition  at  1-  3;  see  also,  e.  g.,  8x8  Comments  at  2;  ACLU  Comments  at  5;  CTIA  Comments  at  1-  3;  Global  Crossing  Comments  at  2-  3;  TIA  Comments  at  4  (all 


 supporting  USTelecoms  Petition  in  this  respect).  We  find  that  the  May  14,  2007  deadline  gives  providers  of  covered  services  sufficient  time  to  develop  compliance  solutions.  Moreover,  as  discussed  infra  in  Section  III.  B.  2., 
 any  telecommunications  carrier  that  believes  compliance  with  section  103  is  not  reasonably  achievable  may  seek  relief  under  section  109(  b). 
 39  47  U.  S.  C    1006(  a)(  2). 
 40  Notice,  19  FCC  Rcd  at  15716,  para.  77. 
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 information  so  identified  is  reasonably  available  to  the  carrier,  and  that  the  provision  of  the  information  to  LEAs  by  the  carrier  is  reasonably  achievable.  We  further  noted  that  the  Telecommunication  Industry 
 Association  disagrees  with  Law  Enforcements  assessment.  41  We  asked  parties  to  comment  on  industry  standards  for  packet-  mode  technologies  in  an  attempt  to  determine  whether  any  of  these  standards  are 
 deficient  and  thus  preclude  carriers,  manufacturers,  and  others  from  relying  on  them  as  safe  harbors  in  complying  with  section  103.  We  made  clear,  however,  that  we  did  not  intend  to  inhibit  the  ongoing  work 
 by  standards  organizations,  carriers,  and  manufacturers  to  develop  and  deploy  CALEA-  compliant  facilities  and  services.  We  recognized  that  CALEA  provides  that  carriers  and  others  may  rely  on  publicly 
 available  technical  requirements  or  standards  adopted  by  an  industry  association  or  standard-  setting  organization  to  meet  the  requirements  of  section  103,  unless  the  Commission  takes  specific  action  in 
 response  to  a  petition.  42 
 20.  In  the  Notice,  therefore,  we  invited  comment  as  to  whether  there  is  any  need  to  define  what  constitutes  publicly  available  technical  requirements  or  standards  adopted  by  an  industry  association 


 or  standard-  setting  organization,  and  sought  comment  regarding  the  appropriateness  of  available  standards  and  specifications  to  be  used  as  safe  harbors  for  packet-  mode  technologies  for  purposes  of 
 CALEA.  We  observed  that  it  appears  that  any  group  or  organization  could  publish  a  set  of  technical  requirements  or  standards  and  claim  it  to  be  a  safe  harbor,  and  we  requested  comment  on  whether  we 
 should  define  what  constitutes  publicly  available  technical  requirements  or  standards  adopted  by  an  industry  association  or  standard  setting  organization.  43  We  also  sought  comment  on  the  appropriate 
 format  to  be  used  for  the  transmission  of  CII  data  to  LEAs.  We  noted  that,  when  broadband  telephony  (including  VoIP)  CII  is  provided  to  LEAs,  they  may  have  concerns  with  the  format  of  the  electronic 
 interface  used  to  provide  the  CII.  We  requested  comment  on  whether  the  CII  should  be  converted  into  a  format  preferred  by  LEAs.  44 


 21.  Discussion.  No  specific  deficiencies  in  any  packet-  mode  standard  were  cited  by  any  commenter.  Rather,  there  was  a  consensus  to  allow  the  standards  process  to  proceed  and  to  resolve  issues 
 with  deficiency  petitions.  45  In  fact,  both  industry  commenters  and  DOJ  note  the  appropriateness  of  this  process.  46  Further,  industry  commenters  observe  that  Law  Enforcement  has  not  filed  a  deficiency  petition 
 with  respect  to  any  packet-  mode  standard.  47  Similarly,  with  regard  to  whether  the  Commission  should  seek  to  determine  the  industry  bodies  that  are  appropriate  to  generate  safe  harbor  standards,  there  is  broad 


 41  Id.  at  15716,  para.  78. 
 42  Id.  at  15717,  para.  79. 
 43  Id.  at  15717,  para.  80. 
 44  Id.  at  15718-  19,  para.  84. 
 45  DOJ  Comments  at  43;  SBC  Comments  at  20-  21;  US  ISPA  Reply  Comments  at  3;  Level  3  Reply  Comments  at  5- 
 6;  TIA  Comments  at  13;  and  Cingular  Comments  at  17. 
 46  BellSouth  Comments  at  16  (stating  that  the  Commission  should  leave  technical  issues    to  the  standards 
 process);  USTelecom  Comments  at  8  (stating  that  As  CALEA  envisioned,  it  is  only  through  collaboration  that  an  industry  standard  can  be  adopted;  Verizon  Reply  Comments  at  3  (  arguing  that  the  standards  process  is  the  best 


 forum  to  resolve  complex  technical  issues);  DOJ  Reply  Comments  at  24  (stating  that  the  proper  way  to  resolve  section  103  technical  capability  issues  under  CALEA  is  through  the  standard-  setting  process  and  deficiency 
 petitions.  47 
 Cingular  Comments  at  17;  SBC  Comments  at  21. 
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 consensus  in  the  record  that  we  should  not.  48  Finally,  with  regard  to  the  issue  of  the  format  of  CII  to  be  provided  to  LEAs,  there  was  a  difference  of  opinion  among  commenters  as  to  whether  a  single  format  is 
 appropriate,  49  but  no  one  recommended  that  the  Commission  determine  this  issue  in  advance  of  industry. 
 22.  Consistent  with  a  broad  range  of  comments,  we  find  that  it  would  be  premature  for  the  Commission  to  pre-  empt  the  ongoing  industry  process  to  develop  additional  standards  for  packet-  mode 


 technologies.  We  believe  that  industry  organizations,  whose  meetings  are  generally  open  to  all  interested  parties    including  LEAs    can  best  develop  those  standards,  just  as  they  previously  developed  circuit 
 switched  standards.  Further,  given  the  diversity  of  technologies  supporting  communications  services  and  the  breadth  of  organizations  involved  both  domestically  and  internationally  in  developing  packet-  mode 
 standards,  we  find  it  both  infeasible  and  inappropriate  to  specify  the  organizations  qualified  to  develop  standards  that  may  be  used  as  safe  harbors.  Finally,  we  find  no  reason  to  become  involved  at  this  time 
 in  the  technically  complex  issue  of  determining  the  appropriate  format  to  be  used  for  the  transmission  of  broadband  CII  data  to  LEAs.  Rather,  for  all  of  these  technical  issues,  we  find  that  the  industry  standards 
 process  remains  the  preferred  forum.  We  note  again,  however,  to  the  extent  that  any  party  perceives  a  problem  with  an  industry  developed  packet-  mode  standard,  it  may  file  with  the  Commission  a  deficiency 
 petition  under  section  107(  b)  of  CALEA. 
 3.  Compliance  Solutions  Based  on  a  Trusted  Third  Party 
 23.  Background.  In  the  Notice,  we  sought  comment  on  the  feasibility  of  using  a  trusted  third  party  (TTP)  approach  to  extract  CII  and  content  from  packets.  50  Under  this  approach,  a  TTP  would 


 operate  a  service  bureau  with  a  system  that  has  access  to  a  carriers  network  equipment  and  remotely  manage  the  intercept  process  for  the  carrier.  51  We  noted  that  the  TTP  could  either  rely  on  a  mediation 
 device  to  collect  separated  call  content  and  CII  from  various  points  in  the  carriers  network  and  deliver  the  appropriate  information  to  a  LEA,  or  could  rely  on  an  external  system  to  collect  combined  call  content 
 and  CII  and  deliver  appropriate  information  to  the  LEA.  52  In  the  Notice,  we  focused  on  the  external  system  approach  which,  we  noted,  could  analyze  the  combined  information  and  provide  the  LEA  only 
 that  information  to  which  it  is  entitled.  53  We  sought  comment  on  whether  an  external  system  would  be  an  efficient  method  to  extract  information  from  packets.  We  stated  that  external  systems  might  provide 


 48  DOJ  Comments  at  43  (stating  the  Commission  should  permit  any  generally  recognized  industry  association  or 
 standard  setting  boding  to  produce  a  CALEA  standard);  Sprint  Reply  Comments  at  3  (  if  any  LEA  believes  that  any  organization  is  not  qualified  under  CALEA  to  develop  safe  harbor  standards,  that  LEA  can  raise  the  issue  in  a 


 Section  107(  b)  industry  petition.);  SIA  Comments  at  15  (stating  that  the  statute  places  no  limitations  on  the  definition  of  industry  association  or  standard-  setting  organization  and  that  the  FCC  may  not  exceed  the 
 authority  delegated  by  Congress.).  49 
 Cingular  Comments  at  21  (  There  is  no  obligation  under  CALEA,  however,  that  carriers  convert  all  information  into  J-  STD-  025  format);  Motorola  Comments  at  19  (  The  carrier  cannot  be  required  to  deliver  the  information  or 


 content  in  a  code  format  that  is  different  than  the  code  format  selected  by  the  carrier  for  its  system,  so  long  as  the  format  is  capable  of  being  transmitted  to  law  enforcement.)  However,  two  parties  stated  that  some  format 
 standards  were  appropriate:  I&  P  Comments  at  49;  Verint  Reply  Comments  at  11.  50 
 Notice,  19  FCC  Rcd  at  15715,  para.  72.  51 
 Id.  at  15714,  para.  69.  52 
 Id.  at  15714,  para.  70.  53 
 Id.  at  15715,  para.  71. 
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 economies  of  scale  for  small  carriers,  and  asked  about  the  approximate  relative  costs  of  internal  versus  external  systems  for  packet  extraction.  54 
 24.  We  recognized  that  tension  could  develop  between  relying  on  a  TTP  model  and  relying  on  safe  harbor  standards.  For  example,  we  inquired  whether,  if  a  TTP  approach  makes  CII  reasonably 
 available  to  a  telecommunications  carrier,  a  standard  that  allows  a  carrier  to  provide  only  the  information  it  uses  to  process  a  packet  should  be  considered  a  safe  harbor  if  a  LEA  would  not  have  all  call-  identifying 
 information  for  the  communication.  55  We  also  recognized  that  reliance  on  a  TTP  might  shift  the  burden  now  shared  by  carriers  and  manufacturers  in  complying  with  CALEA.  56  We  noted  that  the  financial 
 responsibility  for  funding  a  TTP  approach  could  follow  several  models:  the  TTP  could  be  owned  by  the  packet  service  provider  or  a  LEA,  or  it  could  be  an  independent  surveillance  service  provider  who 
 contracts  with  individual  carriers.  57  Finally,  we  sought  comment  on  how  a  telecommunications  carrier  that  relies  on  a  TTP  would  meet  its  obligations  under  section  103(  a)  of  CALEA  to  protect  the  privacy  and 
 security  of  communications  and  CII  not  authorized  to  be  intercepted,  as  well  as  to  protect  information  regarding  the  governments  interception  of  communications  and  access  to  CII.  58 


 25.  Discussion.  Commenters  agree  that  use  of  a  TTP  should  be  an  option  available  to  broadband  access  and  VoIP  providers.  59  Some  contend  that  a  TTP  approach  will  result  in  cost  savings,  60 
 while  others  express  skepticism  that  this  approach  will  be  more  cost-  effective  than  an  in-  house  approach.  61  DOJ  expresses  concern  that  the  use  of  TTPs  by  service  providers  may  diminish  providers 
 incentives  to  find  cost-  effective  intercept  solutions  and  that  providers  could  attempt  to  use  TTPs  to  shift  their  CALEA  financial  responsibilities  to  LEAs.  62  However,  SBC  asserts  that  LEAs  are  required  to 
 compensate  service  providers  for  certain  surveillance  costs,  irrespective  of  whether  those  providers  choose  to  use  a  TTP.  63  Regarding  the  use  of  TTP  capabilities  to  determine  which  features  of  a  carriers 
 packet  network  are  reasonably  available  for  standards  purposes,  DOJ  and  many  industry  commenters 
 54  Id.  at  15715,  para.  72. 
 55  Id.  at  15715,  para.  73. 
 56  Id.  at  15715,  para.  74. 
 57  Id.  at  15716,  para.  75. 
 58  Id.  at  15716,  para.  76. 
 59  BellSouth  Comments  at  43;  DOJ  Comments  at  vi,  49;  I&  P  Comments  at  51;  Level  3  Comments  at  6-  7;  Nextel 
 Comments  at  8;  RCA  Comments  at  4-  5;  SBC  Comments  at  18;  US  ISPA  Comments  at  27;  Verizon  Comments  at  23;  DOJ  Reply  Comments  at  27-  28;  Fiducianet  Reply  Comments  at  3;  NCTA  Reply  Comments  at  7;  Southern 


 LINC  Reply  Comments  at  13;  UPLC  Reply  Comments  at  14-  15;  US  ISPA  Reply  Comments  at  7-  8;  Verizon  Reply  Comments  at  20-  21;  Verint  Reply  Comments  at  8. 
 60  VeriSign  Comments  at  17. 
 61  I&  P  Comments  at  51;  STC  Comments  at  2-  3;  UPLC  Reply  Comments  at  14-  15;  Level  3  Comments  at  6-  7;  Verint 
 Reply  Comments  at  8;  RTP  Comments  at  12.  62 
 DOJ  Comments  at  51;  DOJ  Reply  Comments  at  32-  34.  63 
 SBC  Comments  at  18-  19.  SBC  also  refers  to  the  Omnibus  Crime  Control  and  Safe  Streets  Act  (OCCSSA),  18  U.  S.  C.    2510-  2522,  especially  18  U.  S.  C.    2518(  4),  which  says,  Any  provider  of  wire  or  electronic 


 communication  service,  landlord,  custodian  or  other  person  furnishing  such  facilities  or  technical  assistance  shall  be  compensated  therefor  by  the  applicant  for  reasonable  expenses  incurred  in  providing  such  facilities  or  assistance. 
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 agree  that  those  capabilities  should  not  determine  reasonable  availability.  64  Some  parties  express  privacy  concerns  about  TTPs;  65  however,  others  note  that  there  are  privacy  obligations  on  carriers  due  to  statutes 
 other  than  CALEA,  and  that  TTPs  already  deal  with  customer-  private  data,  including  information  needed  to  support  customer  billing  and  to  control  Internet  spam.  66 


 26.  The  record  indicates  that  TTPs  are  available  to  provide  a  variety  of  services  for  CALEA  compliance  to  carriers,  including  processing  requests  for  intercepts,  conducting  electronic  surveillance, 
 and  delivering  relevant  information  to  LEAs.  Given  the  effectively  unanimous  view  of  commenters  that  the  use  of  TTPs  should  be  permitted  but  not  required,  we  conclude  that  TTPs  may  provide  a  reasonable 
 means  for  carriers  to  comply  with  CALEA,  especially  broadband  access  and  VoIP  providers  and  smaller  carriers.  We  emphasize,  however,  that  if  a  carrier  chooses  to  use  a  TTP,  that  carrier  remains  responsible 
 for  ensuring  the  timely  delivery  of  CII  and  call  content  information  to  a  LEA  and  for  protecting  subscriber  privacy,  as  required  by  CALEA.  Thus,  a  carrier  must  be  satisfied  that  the  TTP's  processes 
 allow  the  carrier  to  meet  its  obligations  without  compromising  the  integrity  of  the  intercept.  67  Carriers  will  not  be  relieved  of  their  CALEA  obligations  by  asserting  that  a  TTP's  processes  prevented  them  from 
 complying  with  CALEA.  We  note  DOJs  concern  about  carriers  attempting  to  use  TTPs  to  shift  costs  to  LEAs,  but  we  make  no  decision  here  that  would  allow  carriers  who  choose  to  use  a  TTP  to  shift  the 
 financial  responsibility  for  CALEA  compliance  to  the  Attorney  General  under  Section  109  (see  discussion  on  cost  recovery,  infra).  We  will  evaluate  whether  the  availability  of  a  TTP  makes  call-identifying 
 information  reasonably  available  to  a  carrier  within  the  context  of  section  103  in  acting  on  a  section  109  petition  that  a  carrier  may  file  (see  discussion  on  section  109  petitions,  infra).  As  noted  by 
 several  commenters,  telecommunications  carriers  and  manufacturers  have  legally-  mandated  privacy  obligations,  and  we  take  no  action  herein  to  modify  those  obligations  based  on  potential  broadband  access 
 and  VoIP  provider  use  of  TTPs.  68  Finally,  in  accord  with  the  consensus  of  comments,  we  will  defer  to  standards  organizations  and  industry  associations  and  allow  them  to  determine  the  degree  to  which  the 
 ability  of  a  TTP  external  system  to  extract  and  isolate  CII  makes  that  information  reasonably  available  for  purposes  of  defining  CALEA  standards  and  safe  harbors. 


 B.  SECTIONS  107(  C)  AND  109(  B)  PETITIONS 
 27.  In  this  section  of  the  Second  Report  and  Order,  we  address  the  scope  of  relief  available  to  telecommunications  carriers  pursuant  to  CALEA  sections  107(  c)(  2)  and  109(  b);  clarify  guidelines  to 


 64  DOJ  Comments  at  50;  Motorola  Comments  at  19;  Nextel  Comments  at  8;  NTCA  Comments  at  6;  TIA  Comments 
 at  19;  US  ISPA  Comments  at  28-  29;  Verizon  Comments  at  25;  US  ISPA  Reply  Comments  at  8.  65 
 ACLU  Comments  at  9;  EFF  Comments  at  26;  TCA  Comments  at  3;  US  ISPA  Comments  at  28.  66 
 Cingular  Comments  at  20;  Fiducianet  Reply  Comments  at  8;  VeriSign  Reply  Comments  at  16.  67 
 We  note,  however,  that  a  carriers  independent  determination  in  the  first  instance  that  compliance  through  a  TTP  would  not  compromise  the  integrity  of  an  intercept  is  neither  controlling  on  the  Commission  on  the  issue  of 


 compliance  with  the  carriers  CALEA  obligations  nor  dispositive  of  compliance  with  any  specific  requirements  imposed  by  a  court  authorizing  an  interception  or  electronic  surveillance  pursuant  to  Titles  18  or  50  of  the  United 
 States  Code.  68 
 We  note  that  the  evolution  and  structure  of  the  TTP  industry  is  still  ongoing.  As  a  result,  we  recognize  that  there  may  be  heretofore  unknown  circumstances  in  which  additional  or  special  privacy  or  security  measures  may  be 


 warranted  (e.  g.  in  the  case  of  a  foreign  owned  or  controlled  TTP)  and  which  may  necessitate  further  Commission  action  in  this  area. 
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 govern  the  filing  and  evaluation  of  petitions  filed  under  these  two  sections;  and  dispose  of  pending  section  107(  c)(  2)  petitions.  As  discussed  below,  under  the  express  terms  of  the  statute,  all 
 telecommunications  carriers  subject  to  CALEA  must  comply  with  its  mandate.  Sections  107(  c)  and  109(  b)  provide  only  limited  and  temporary  relief  from  CALEA  compliance  requirements;  they  are 
 complementary  provisions  that  serve  different  purposes.  69 
 28.  Due  to  the  time  limitations  set  forth  in  the  CALEA  statute,  telecommunications  carriers  may  not  use  section  107(  c)(  1)  to  obtain  extensions  of  the  compliance  deadline  in  connection  with  most 


 packet  services.  70  We  find  that  it  would  be  inconsistent  with  the  express  time  limitations  of  section  107(  c)  for  the  Commission  to  grant  107(  c)  extension  relief  to  equipment,  facilities  or  services  deployed 
 after  the  effective  date  of  CALEA  pursuant  to  other  CALEA  provisions,  section  229  of  the  Communications  Act,  or  section  706  of  the  Telecommunications  Act  of  1996.  We  also  find  that,  to  obtain 
 section  109(  b)(  1)  relief,  in  connection  with  a  given  assistance  capability  requirement  under  section  103,  a  telecommunications  carrier  must  demonstrate  that  it  undertook  active  and  sustained  efforts  to  come  into 
 compliance  with  that  requirement,  and  that  compliance  could  not  reasonably  be  achieved  without  significant  difficulty  or  expense.  71  As  a  result,  telecommunications  carriers  filing  section  109(  b) 
 petitions  face  a  high  burden  to  obtain  relief. 
 29.  In  the  case  of  packet-  mode  compliance  requirements  addressed  in  this  Second  Report  and  Order,  we  expect  that  telecommunications  carriers  will  work  diligently  until  the  end  of  the  18-  month 


 69  See  Notice,  19  FCC  Rcd  at  15724,  para.  96. 
 70  Most  packet-  mode  technologies  were  deployed  after  section  107(  c)(  1)  s  expiration  date,  October  25,  1998. 
 Section  107(  c)(  1)  provides,  A  telecommunications  carrier  proposing  to  install  or  deploy,  or  having  installed  or  deployed,  any  equipment,  facility,  or  service  prior  to  the  effective  date  of  section  1002  [October  25,  1998]  of  this 


 title  may  petition  the  Commission  for  1  or  more  extensions  of  the  deadline  for  complying  with  the  capability  requirements  under  section  1002  of  this  title.  47  U.  S.  C.    1006(  c)(  1);  CALEA    108  (emphasis  added).  Section 
 1002  sets  forth  the  CALEA  compliance  requirements.  47  U.  S.  C.    1002;  CALEA    103.  71 
 See  47  U.  S.  C.    1008(  b)(  1);  CALEA    109(  b)(  1).  A  telecommunications  carrier  may  demonstrate  that  compliance  is  not  reasonably  achievable  if  the  Commission  determines  that  compliance  would  impose  a 


 significant  difficulty  or  expense  on  the  carrier  or  on  the  users  of  the  carriers  systems.  Id.  In  making  this  determination,  the  Commission  considers  the  following  factors:  (1)  the  effect  on  public  safety  and  national  security; 
 (2)  the  effect  on  rates  for  basic  residential  telephone  service;  (3)  the  need  to  protect  the  privacy  and  security  of  communications  not  authorized  to  be  intercepted;  (4)  the  need  to  achieve  the  capability  assistance  requirements  of 
 section  103  by  cost-  effective  methods;  (5)  the  effect  on  the  nature  and  cost  of  the  equipment,  facility,  or  service  at  issue;  (6)  the  effect  on  the  operation  of  the  equipment,  facility,  or  service  at  issue;  (7)  the  policy  of  the  United  States 
 to  encourage  the  provision  of  new  technologies  and  services  to  the  public;  (8)  the  financial  resources  of  the  telecommunications  carrier;  (9)  the  effect  on  competition  in  the  provision  of  telecommunications  services;  (10)  the 
 extent  to  which  the  design  and  development  of  the  equipment,  facility,  or  service  was  initiated  before  January  1,  1995;  and  (11)  such  other  factors  as  the  Commission  determines  are  appropriate.  Id. 


 If  the  Commission  finds  that  compliance  is  not  reasonably  achievable  and  grants  a  section  109(  b)(  1)  petition,  then  the  telecommunications  carrier  need  not  pay  the  costs  of  coming  into  CALEA  compliance.  However,  upon 
 receiving  section  109(  b)(  1)  favorable  ruling,  the  telecommunications  carrier  must  apply  to  the  Attorney  General,  who  may  agree,  subject  to  the  availability  of  appropriations,  to  pay  that  telecommunications  carrier  for  the 
 additional  reasonable  costs  of  making  compliance  with  the  capability  requirements  reasonably  achievable.  47  U.  S.  C.    1008(  b)(  2)(  A);  CALEA    109(  b)(  2)(  A).  If  the  Attorney  General  does  not  agree  to  pay  such  costs,  that 
 telecommunications  carrier  shall  be  deemed  to  be  in  compliance  with  the  capability  requirements.  47  U.  S.  C.    1008(  b)(  2)(  B);  CALEA    109(  b)(  2)(  B). 
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 section  103  ,    72  i.  e.,  prior  to  October  25,  1998.  73  Given  this  limitation,  a  section  107(  c)  extension  is  not  available  to  cover  equipment,  facilities,  or  services  installed  or  deployed  on  or  after  October  25,  1998. 
 Commenters  failed  to  present  any  other  reasonable  way  to  read  this  section,  and  we  reject  arguments  by  commenters  that  the  Commission  should  nonetheless  ignore  Congresss  limited  grant  of  authority  to 
 entertain  CALEA  extension  petitions  and  look  to  other  statutes  for  authority  to  grant  extensions  for  facilities  deployed  after  Congresss  cut-  off  date. 


 32.  We  reject  commenters  argument  that  the  Commission  could  entertain  extension  petitions  pursuant  to  statutes  other  than  section  107(  c),  including  CALEA  section  109(  b)(  1)  and  section  706  of  the 
 Telecommunications  Act  of  1996.  74  While  we  agree  that  section  107(  c)(  1)  does  not  appear  to  prohibit  the  Commission  from  exercising  authority  under  another  statute,  we  find  it  unlikely  that  Congress  intended 
 the  Commission  to  do  so.  The  language  of  section  107(  c)(  1)  is  very  specific  as  to  what  equipment,  facilities,  and  services  are  covered.  Congress  determined  that,  effective  October  25,  1998, 
 telecommunications  carriers  should  incorporate  a  CALEA  compliance  plan  into  the  design  of  any  new  facilities  deployments  in  so  far  as  they  are  not  exempt  from  CALEA.  75  To  the  extent  that,  in  hindsight, 
 after  exercising  due  diligence,  a  specific  CALEA  compliance  plan  was  not  reasonably  achievable  due  to  a  significant  expense  or  significant  harm,  76  telecommunications  carriers  could  then  seek  relief  pursuant 
 to  section  109(  b)(  1).  Therefore,  in  designing  sections  107(  c)(  1)  and  109(  b)(  1),  Congress  appears  to  have  balanced  carefully  what  it  found  to  be  a  reasonable  compliance  period  against  a  firm  deadline  for  CALEA 
 compliance.  If  Congress  had  intended  for  the  Commission  to  continue  granting  extension  petitions  after  October  25,  1998,  we  find  it  unlikely  that  Congress  would  have  placed  the  time  limitations  in  section 
 107(  c)(  1). 
 33.  To  interpret  other  statutes  to  grant  the  Commission  CALEA  extension  authority  would  undermine  Congresss  intent  that,  after  a  reasonable  compliance  period,  all  telecommunications  carriers 


 would  comply  with  their  lawful  CALEA  obligations.  Thus,  we  reject  commenters  arguments  that  CALEA  section  109(  b)(  1),  section  706  of  the  Telecommunications  Act  of  1996,  and  section  229(  a)  of  the 
 Communications  Act  provide  the  Commission  with  authority  to  grant  extension  petitions  for  facilities  deployed  on  or  after  October  25,  1998.  First,  although  we  believe  that  the  Commission  has  broad 
 discretion  under  CALEA  section  109(  b)(  1)(  K)  to  impose  conditions  on  relief  granted  by  that  section,  we  disagree  with  Global  Crossing  that  the  Commission  should  use  that  section  to  grant  extension  relief  given 


 72  See  47  U.  S.  C.    1006(  c)(  1);  CALEA    107(  c)(  1)  (emphasis  added). 
 73  Notice,  19  FCC  Rcd  at  15725,  para.  97. 
 74  Cingular  Comments  at  23;  Nextel  Comments  at  10-  11;  SBC  Reply  Comments  at  6-  7.  These  commenters  argue 
 that  the  language  of  section  107(  c)(  1)  does  not  expressly  preclude  the  Commission  from  exercising  extension  authority  pursuant  to  other  statutes. 


 75  See,  e.  g.,  First  Report  and  Order  at  para.  38  (noting  that  a  facilities-  based  broadband  Internet  service  provider 
 continues  to  have  no  CALEA  obligation  with  respect  to,  for  example,  the  storage  functions  of  its  email  service,  its  web-  hosting  and  DNS  lookup  functions  or  any  other  ISP  functionality  of  its  Internet  access  service). 


 Telecommunications  carriers  may  petition  the  Commission  for  a  ruling  on  whether  certain  facilities  or  services  are  subject  to  CALEA  (see  discussion  on  future  services  and  technologies,  paras.  77-  80,  infra). 
 76  47  U.  S.  C.    1008(  b)(  1);  CALEA    109(  b)(  1).  A  telecommunications  carrier  may  demonstrate  that  compliance  is 
 not  reasonable  achievable  if  the  Commission  determines  that  compliance  would  impose  a  significant  difficulty  or  expense  on  the  carrier  or  on  the  users  of  the  carriers  systems.  Id. 
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 the  express  limitation  in  section  107(  c)(  1).  77  Second,  we  disagree  with  OPASTCO  78  that  the  Commission  should  employ  section  706  as  overriding  statutory  authority,  because  we  find  that  section  706s  directive 
 that  the  Commission  encourage  the  deployment  of  advanced  telecommunications  capability  79  is  consistent  with  a  criterion  that  the  Commission  must  examine  in  a  section  109(  b)(  1)  petition.  80  Because 
 section  109(  b)(  1)  directs  the  Commission  to  balance  this  one  policy  objective  against  10  other  factors,  we  decline  to  rely  solely  on  one  factor  to  the  exclusion  of  all  others.  Third,  we  disagree  with  commenters 
 who  argue  that  the  Commission  has  broad  authority  to  entertain  extension  petitions  under  section  229(  a)  of  the  Communications  Act,  81  which  is  the  provision  that  grants  the  Commission  authority  to  implement 
 CALEA.  We  believe  that,  where  Congress  has  specifically  limited  Commission  extension  authority  in  the  CALEA  statute  itself,  it  would  be  inappropriate  to  employ  section  229(  a)  to  nevertheless  find  this 
 authority.  82 
 b.  Contents  of  Section  107(  c)(  1)  Petitions 


 34.  We  note  that  participation  in  the  FBIs  Flexible  Deployment  Program  has  permitted  even  small  and  rural  telecommunications  carriers  to  work  with  LEAs  to  develop  circuit-  mode  CALEA 
 compliance  solutions.  83  Packet-  mode  telecommunications  carriers,  however,  are  still  in  a  much  earlier  stage  of  CALEA  deployment.  Our  finding  today  that  section  107(  c)(  1)  is  not  available  for  facilities 
 deployed  on  or  after  October  25,  1998  will  compel  most  of  these  telecommunications  carriers  to  implement  CALEA  compliant  solutions.  To  the  extent  that  telecommunications  carriers  deployed  packet-mode 
 facilities  prior  to  this  date,  we  expect  those  telecommunications  carriers  to  follow  the  guidelines  set  forth  below  for  section  107(  c)(  1)  petitions. 


 35.  Telecommunications  carriers  that  deployed  circuit-  mode  facilities  prior  to  October  25,  1998.  For  this  class  of  telecommunications  carriers,  we  adopt  the  Notices  proposal  that  petitions  contain 
 (1)  an  explanation  for  why  an  extension  is  necessary,  (2)  a  compliance  plan  setting  forth  specific  dates  for  compliance  no  later  than  two  years  after  the  petitions  filing  date,  84  (3)  a  description  of  petitioners  due 


 77  See  Global  Crossing  Comments  at  14  (arguing  that  this  approach  will  uphold  Congress  intent  that 
 telecommunications  carriers  deploy  advanced  facilities  until  CALEA  solutions  are  developed  and  until  the  Commission  has  had  an  opportunity  to  review  these  new  facilities). 


 78  OPASTCO  Comments  at  4  (arguing  that,  if  extensions  of  time  are  not  granted,  new  technology  will  not  be 
 deployed).  79 
 Section  706  (  The  Commission  shall  encourage  the  deployment  of  advance  telecommunications  capability  by  utilizing  regulating  methods  that  remove  barriers  to  infrastructure  investment.). 


 80  In  deciding  whether  to  grant  a  section  109(  b)(  1)  petition,  the  Commission  must  weigh  [  t]  he  policy  of  the  United 
 States  to  encourage  the  provision  of  new  technologies  and  services  to  the  public.  Section  109(  b)(  1)(  G).  81 
 47  U.  S.  C.    229(  a)  (  The  Commission  shall  prescribe  such  rules  as  are  necessary  to  implement  the  requirements  of  the  Communications  Assistance  for  Law  Enforcement  Act.). 


 82  See  Nextel  Comments  at  10-  11;  CTIA  Comments  at  6;  OPATSCO  Comments  at  4  (arguing  for  relief  for  rural 
 carriers).  83 
 As  noted  in  the  Notice,  the  Commission  has  on  file  approximately  300  section  107(  c)(  1)  petitions.  This  is  almost  600  fewer  than  the  number  of  petitions  that  we  had  on  file  in  2003. 


 84  Section  107(  c)(  2)  permits  the  Commission  to  grant  extensions  of  only  two  years. 
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 diligence  attempts  to  become  CALEA  compliant  since  June  30,  2002,  85  and  (4)  information  satisfying  the  information  requests  attached  in  Appendix  F  to  this  Second  Report  and  Order.  86  Such  information 
 will  enable  us  to  better  evaluate  whether  a  telecommunications  carrier  merits  an  extension.  We  decline  to  adopt  our  tentative  proposal  that  a  circuit-  mode  telecommunications  carrier  that  participates  in  the  FBIs 
 Flexible  Deployment  Program  should  be  deemed  de  jure  to  meet  the  section  107(  c)(  1)  standard.  Upon  consideration  of  its  comments,  we  agree  with  DOJ  that  section  107(  c)  requires  more  than  enrollment  in 
 Flex  Deployment.  87  We  will  consider  enrollment  plus  the  other  items  included  in  our  instructions  in  determining  whether  section  107(  c)  relief  is  appropriate.  88  As  in  the  past,  upon  the  filing  of  a  section 
 107(  c)(  1)  petition,  we  will  continue  to  grant  a  provisional  extension  for  a  period  of  two  years  unless  or  until  we  issue  an  order  that  states  otherwise. 


 36.  We  reject  assertions  that  our  section  107(  c)(  1)  approach  is  overly  burdensome.  89  We  interpret  section  107(  c)(  1)  so  that  telecommunications  carriers  may  minimize  the  statutory  burden 
 themselves  if  they  proactively  seek  CALEA  solutions.  Commenters  argue  that  telecommunications  carriers,  especially  small  ones,  face  particular  challenges,  including,  for  example,  lack  of  clout  to 
 negotiate  with  manufacturers  and  lack  of  resources.  90  We  find  that  section  107(  c)  allows  us  to  take  into  account  the  particular  situation  of  a  telecommunications  carrier,  including  its  bargaining  power  and 
 financial  resources,  when  analyzing  whether  CALEA  compliance  is  not  reasonably  achievable  through  application  of  technology  available  within  the  compliance  period. 


 37.  Telecommunications  carriers  that  deployed  packet-  mode  facilities  prior  to  October  25,  1998.  We  adopt  the  Notices  proposal  that,  to  obtain  an  extension  of  time,  a  packet  mode 
 telecommunications  carrier  must  provide  documentation  setting  forth  (1)  an  explanation  why  an  extension  of  time  is  necessary,  (2)  a  compliance  plan  including  specific  dates  for  compliance  no  later  than  two  years 
 after  the  petitions  filing  date,  (3)  a  description  of  petitioners  due  diligence  attempts  to  become  CALEA  compliant  since  November  19,  2001,  i.  e.,  the  date  mandated  for  packet-  mode  CALEA 
 compliance  by  the  Commissions  September  28,  2001  Public  Notice,  91  and  (4)  information  satisfying  the 


 85  The  Notice  proposed  that  description  should  include  a  documented  recital  of  negotiations  with  equipment 
 manufacturers  and  third-  party  CALEA  service  providers,  or  other  persuasive  evidence  that  the  petitioner  actively  and  diligently  searched  for  available  CALEA-  compliant  solutions.  Regarding  petitioner  showings  about  costs 


 associated  with  circuit-  mode  CALEA  compliance,  we  expect  that  parties  will  submit  detailed  and  specific  information,  and  we  direct  parties  attention  to  the  discussion  in  the  Second  R&  O,  including  our  determination  that 
 costs  not  directly  related  to  CALEA  compliance  may  not  be  included.  Notice,  19  FCC  Rcd  at  15723,  para.  93.  86 
 In  the  Notice,  we  proposed  that  petitioners  provide  information  that  conformed  to  Exhibit  E  to  that  document.  In  order  to  better  reflect  the  record  and  the  analysis  produced  in  this  proceeding,  we  have  refined  that  exhibit  and 


 created  filing  instructions  to  better  guide  section  107(  c)(  2)  petitioners  in  Appendix  F,  infra.  87 
 See  DOJ  Comments  at  61.  88 
 See  again  Appendix  F,  infra.  89 
 See,  e.  g.,  NTCA  Comments  at  6-  7;  RTG  Comments  at  2-  3;  Advocacy  Reply  Comments  at  7-  8;  CTIA  Reply  Comments  at  4. 


 90  See,  e.  g.,  NTCA  Comments  at  8;  RTG  Comments  at  6;  Advocacy  Reply  Comments  at  6;  USTelecom  Comments 
 at  14.  91 
 The  Notice  tentatively  concluded  that  this  description  must  include  a  documented  recital  of  negotiations  with  equipment  manufacturers  and  third-  party  CALEA  service  providers,  or  other  persuasive  evidence  that  the  petitioner 


 Footnote  continued  on  the  next  page. 
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 information  requests  attached  in  Appendix  F  hereto.  92  Other  than  arguments  of  burden,  which  we  discuss  above,  commenters  failed  to  provide  convincing  evidence  or  arguments  to  show  why  the  Commission 
 should  depart  from  its  proposal  in  the  Notice. 
 2.  Section  109(  b)(  1)  Relief 


 38.  In  this  section,  we  affirm  the  Notices  tentative  conclusions  that  Congress  anticipated  that  section  109(  b)(  1)  would  be  used  in  extraordinary  cases  by  telecommunications  carriers  facing 
 particularly  high  CALEA-  related  costs  and  difficulties.  93  We  first  describe  below  the  scope  of  relief  granted  under  section  109(  b)(  1)  and  its  relationship  to  other  CALEA  provisions.  Second,  we  find  that  a 
 petitioner  must  meet  a  high  burden  of  proof  to  satisfy  section  109(  b)(  1)  and  may  not  use  the  absence  of  available  solutions  as  the  sole  basis  for  section  109(  b)(  1)  relief.  Third,  we  find  that  a  petitioner  must 
 exercise  due  diligence  to  present  a  specific  solution  or  a  pathway  designed  to  reach  a  specific  solution.  Finally,  we  explain  how  we  will  weigh  section  109(  b)(  1)  s  eleven  factors  in  evaluating  a  petition. 


 a.  Scope  of  Section  109(  b)(  1)  Relief  and  Its  Relationship  To  Other  CALEA  Sections 


 39.  Section  109(  b)(  1)  relief  shifts  the  burden  of  paying  for  a  specific  CALEA  solution  to  DOJ.  Section  109(  b)(  1)  is  a  mechanism  for  a  telecommunications  carrier  to  recover  CALEA  compliance  costs 
 from  DOJ  if  the  telecommunications  carrier  can  demonstrate  that  compliance  with  CALEA  capability  requirements  is  not  reasonably  achievable.  Section  109(  b)(  1)  defines  reasonably  achievable  to  mean 
 that  compliance  would  impose  a  significant  difficulty  or  expense  on  the  telecommunications  carrier.  94  If  the  Commission  grants  a  section  109(  b)(  1)  petition,  the  only  relief  that  a  telecommunications  carrier 
 receives  is  the  following:  the  telecommunications  carrier  may,  pursuant  to  section  109(  b)(  2)(  A),  request  DOJ  to  pay  for  the  additional  reasonable  costs  for  making  CALEA  compliance  reasonably  achievable. 
 DOJ  may  then  agree  to  pay  for  these  costs.  If  DOJ  declines  to  pay  for  these  costs,  then  the  telecommunications  carrier  shall  be  deemed  to  be  in  compliance  with  the  capability  requirements  for 
 the  equipment,  facilities,  and/  or  services  that  were  the  subject  of  the  section  109(  b)(  1)  petition.  95 
 40.  Section  109(  b)(  1)  neither  compels  a  telecommunications  carrier  to  adopt  a  specific  CALEA  solution  nor  requires  DOJ  to  pay  for  the  telecommunications  carriers  preferred  solution.  As 


 discussed  above,  under  section  103,  a  telecommunications  carrier  is  entitled  to  implement  whatever  solution  it  believes  best  suits  its  network  needs.  96  However,  to  recover  costs  from  DOJ,  a 


 actively  and  diligently  searched  for  available  CALEA-  compliant  solutions  since  November  19,  2001.  Notice,  19  FCC  Rcd  at  15727-  28,  para.  103. 
 92  In  the  Notice,  we  proposed  that  petitioners  provide  information  that  conformed  to  Exhibit  F  to  that  document.  In 
 order  to  better  reflect  the  record  and  the  analysis  produced  in  this  proceeding,  we  have  refined  that  exhibit  and  created  filing  instructions  to  better  guide  section  107(  c)(  2)  petitioners  in  Appendix  F  to  this  Second  R&  O  and 


 MO&  O.  93 
 Notice,  19  FCC  Rcd  at  15728,  para.  104.  94 
 Id.  at  15685,  para.  19  (  Section  109  of  CALEA  addresses  the  payment  of  costs  by  the  Attorney  General  to  telecommunications  carriers  who  comply  with  the  capability  requirements  of  section  103.). 


 95  47  U.  S.  C.    1008(  b)(  2)(  B). 
 96  47  U.  S.  C.    1002(  b)(  1). 
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 telecommunications  carrier  must  satisfy  the  obligations  set  forth  in  section  109(  b)(  1).  This  means  that  the  telecommunications  carrier  must  demonstrate  that  compliance  would  impose  a  significant  difficulty  or 
 expense.  97  If  there  is  a  reasonable  means  of  compliance  available,  even  if  it  is  not  the  telecommunications  carriers  preferred  solution,  then  the  Commission  may  find  that  a  less  expensive,  alternative  solution 
 would  not  impose  a  significant  difficulty  or  expense  and  deny  the  petition.  Section  109(  b)(  1)  makes  no  reference  to  the  solution  preferences  of  a  telecommunications  carrier    rather  it  focuses  on  whether 
 compliance  with  section  103  would  impose  a  significant  difficulty  or  expense.  A  telecommunications  carrier  that  fails  to  make  this  showing  may  not  request  payment  from  DOJ.  If,  on  the  other  hand,  the 
 Commission  finds  that  compliance  is  not  reasonably  achievable  within  the  meaning  of  section  109(  b),  DOJ  has  the  option  to  pay  the  appropriate  costs  of  whatever  compliance  solutions  DOJ  deems 
 appropriate. 
 41.  Section  109(  b)(  1)  relief  terminates  when  the  equipment,  facilities  or  services  undergo  a  substantial  replacement,  modification  or  upgrade.  As  discussed  in  more  detail  below,  a  section  109(  b)(  1) 


 petition  must  explain  with  specificity  the  equipment,  facility,  or  service  for  which  the  petitioner  seeks  relief.  98  The  Commissions  order  granting  section  109(  b)(  1)  relief  will  specify  what  equipment,  facility, 
 and/  or  service  is  covered  by  the  order.  Once  that  equipment,  facility,  or  service  is  replaced,  significantly  upgraded  or  otherwise  undergoes  major  modification,  the  carrier  is  no  longer  relieved  of  its  CALEA 
 obligations  and  the  replacement  must  comply  with  section  103.  99  To  obtain  section  109(  b)(  1)  relief  for  the  modified  equipment,  the  telecommunications  carrier  would  have  to  file  a  new  109(  b)(  1)  petition.  100 


 42.  Section  109(  b)(  1)  relief  does  not  include  extensions  of  time.  Section  109(  b)(  1)  is  a  cost  recovery  vehicle.  Section  107(  c)(  1)  is  the  CALEA  provision  that  addresses  extensions  of  time.  As 
 discussed  in  Section  III.  B.  1,  supra,  Congress  determined  that  telecommunications  carriers  cannot  seek  extension  relief  for  facilities  deployed  on  or  after  October  25,  1998. 


 b.  The  Section  109(  b)(  1)  Burden  of  Proof 
 97  This  is  explained  in  further  detail  in  section  III.  B.  2.  b,  infra. 
 98  47  U.  S.  C.    1008(  b)(  1)  (determination  of  reasonably  achievable  is  made  with  regard  to  the  telecommunications 
 carriers  particular  equipment,  facility,  or  service).  99 
 Compare  CALEA  section  109(  d),  47  U.  S.  C.    1008(  d)  (applying  this  standard  to  equipment,  facilities,  and  services  deployed  on  or  before  January  1,  1995);  see  also  Notice,  19  FCC  Rcd  15680-  81,  para.  10  (describing 


 standard).  We  note  that  the  FBI  began  a  rulemaking  in  1998  seeking  to  define  significant  upgrade  or  major  modification  and  other  CALEA  terms.  Notice,  19  FCC  Rcd  at  15685-  86,  para.  19  (citing  63  Fed.  Reg.  23,  231 
 (1998);  66  Fed.  Reg.  50931  (2001)).  100 
 Section  109(  b)(  1)  relief  may  also  be  terminated  with  regard  to  equipment,  facilities  or  services  in  advance  of  a  substantial  replacement,  modification  or  upgrade.  We  note  that  section  109(  b)(  1)  does  not  foreclose  the 


 Commissions  consideration  and  grant  of  an  interested  partys  subsequent  petition  based  on  a  change  in  the  circumstances  underlying  a  section  109(  b)(  1)  determination  that  compliance  is  not  reasonably  achievable. 
 Moreover,  as  the  Commission  stated  in  the  Notice,  we  do  not  interpret  section  109(  b)(  1)  to  provide  a  permanent  exemption  from  the  CALEA  section  103  compliance  mandate.  See  Notice,  19  FCC  Rcd  at  15726,  para.  99.  Thus, 
 the  Commission  may  time-  limit  or  otherwise  condition  a  carriers  section  109(  b)(  1)  relief  based  on  facts  known  to  the  Commission  at  the  time  such  relief  is  granted. 
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 43.  We  affirm  the  Notices  tentative  conclusion  that  a  telecommunications  carrier  faces  a  high  burden  of  proof  in  order  to  be  relieved  of  its  obligations  to  pay  for  CALEA  compliance.  101 
 Specifically,  section  109(  b)(  1)  requires  a  petitioner  to  demonstrate,  with  respect  to  each  section  103  assistance  capability  requirement  for  which  it  seeks  relief,  that  it  has  examined  all  possible  solutions  and 
 that  all  of  these  solutions  would  impose  a  significant  difficulty  or  expense  on  the  petitioner.  This  means  that  if  the  Commission  is  aware  of  a  CALEA  solution  that  the  telecommunications  carrier  has  not 
 explored  and  covered  in  its  petition,  the  Commission  will  likely  dismiss  the  section  109(  b)(  1)  petition  as  prima  facie  insufficient.  102  In  its  petition,  the  telecommunications  carrier  must  explain  with  specificity 
 the  possible  CALEA  solution  and  the  significant  difficulty  or  expense  that  that  solution  would  impose  on  the  telecommunications  carrier  so  that  the  Commission  and  later  DOJ  may  render  their  respective 
 determinations,  under  sections  109(  b)(  1)  and  109(  b)(  2)(  A).  We  adopt  the  tentative  conclusion  in  the  Notice  that  telecommunications  carriers  may  not  rely  solely  on  the  absence  of  industry  standards  and 
 solutions  under  section  109(  b)(  1)(  K)  as  a  basis  for  section  109(  b)(  1)  relief.  103 
 44.  We  further  adopt  our  tentative  conclusion  that  a  section  109(  b)(  1)  petition  must  seek  relief  for  precisely  identified  equipment  facilities,  or  services.    104  In  this  regard,  a  petitioner  must 


 describe  with  specificity  how,  in  its  due  diligence,  the  telecommunications  carrier  made  reasonable  efforts  to  identify  a  specific  solution  or  a  pathway  to  a  specific  solution.  Without  this  showing,  the  Commission 
 will  have  no  factual  basis  to  evaluate  whether  a  telecommunications  carrier  has  satisfied  the  requirements  of  section  109(  b). 


 45.  In  addition,  to  the  extent  that  multiple  solutions  to  a  particular  CALEA  capability  requirement  exist,  the  petitioner  must  demonstrate  that  it  would  suffer  significant  difficulty  or  expense  if 
 it  were  to  implement  any  of  them.  We  believe  that  the  statute  requires  this  showing  for  at  least  two  reasons.  First,  the  inquiry  under  section  109(  b)(  1)  is  whether  CALEA  compliance  imposes  a  specific 
 harm,  not  whether  a  telecommunications  carrier  is  unable  to  institute  its  solution  of  choice.  If  alternative,  less  expensive  solutions  exist  that  are  reasonably  achievable,  then  the  telecommunications  carrier  is  not 
 entitled  to  a  section  109(  b)(  1)  determination  that  CALEA  compliance  would  impose  a  significant  difficulty  or  expense.  Second,  it  would  be  unreasonable  to  read  the  statute  to  require  DOJ  to  pay  the  costs 
 for  a  more  expensive  solution  if  a  less  expensive  solution  exists.  If  multiple  solutions  exist,  DOJ  should  have  the  option  to  pay  for  the  least  expensive  one  available.  105 


 101  In  the  Notice,  the  Commission  invited  comment  on  the  telecommunications  carriers  burden  of  proof,  including 
 what  type  of  showing  a  petitioner  must  make  in  the  absence  of  available  technologies.  See  Notice,  19  FCC  Rcd  at  15728-  29,  paras.  104,  105. 


 102  This  does  not  mean  that  the  petitioner  must  adopt  the  solution.  Rather,  it  means  that  the  petitioner  will  not 
 receive  section  109(  b)(  1)  relief  until  it  demonstrates  that  the  solution  would  impose  a  significant  difficulty  or  harm  on  the  petitioner. 


 103  Notice,  19  FCC  Rcd  at  15728,  para.  105.  In  making  a  section  109(  b)(  1)  determination,  in  addition  to  examining 
 10  specified  factors,  the  Commission  may  examine  [  s]  uch  other  factors  as  the  Commission  determines  are  appropriate.  47  U.  S.  C.    1008(  b)(  1)(  K). 


 104  Notice,  19  FCC  Rcd  at  15725,  para.  98. 
 105  Our  interpretation  of  how  the  statute  would  operate  in  practice  is  consistent  with  the  different  language  Congress 
 used  in  sections  107(  c)(  1)  and  109(  b)(  1).  Unlike  section  107(  c),  section  109(  b)  contains  no  requirement  that  we  evaluate  what  is  reasonably  achievable  with  reference  to  available  technology.  In  other  words,  while  a  petitioner 


 may  seek  relief  under  section  107(  c)  on  the  grounds  that  the  industry  has  not  developed  a  standard  or  a  solution,  Footnote  continued  on  the  next  page. 
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 c.  Petitioner  Due  Diligence  Requirement 
 46.  In  the  Notice,  the  Commission  tentatively  concluded  that  section  109(  b)(  1)  petitioners  will  be  expected  to  demonstrate  active  and  sustained  efforts  at  developing  and  implementing  CALEA 


 solutions  for  their  operations,  i.  e.,  regardless  of  whether  CALEA  solutions  for  packet-  mode  are  generally  available.  106  We  explained  this  due  diligence  showing  as  requiring  petitioners  to  submit  detailed 
 information  about  discussions  and  negotiations  with  switch  manufacturers,  other  equipment  manufacturers,  and  TTPs,  both  before  and  after  the  FBI  announced  the  termination  of  the  Flexible 
 Deployment  Program  in  connection  with  packet-  mode  technology.  We  tentatively  concluded  that  unless  we  are  persuaded  that  petitioners  have  engaged  in  sustained  and  systematic  negotiations  with 
 manufacturers  and  third-  party  providers  to  design,  develop,  and  implement  CALEA  solutions,  we  should  reject  submitted  petitions.  107 


 47.  Many  commenters  disagreed  with  our  analysis  and  conclusions,  but  none  persuasively  demonstrated  that  section  109(  b)(  1)  excludes  consideration  of  due  diligence  and  none  persuade  us  that 
 consideration  of  due  diligence  is  unnecessary  for  a  proper  interpretation  and  application  of  section  109(  b)(  1).  Basically,  the  due  diligence  requirement  is  necessary  to  ensure  that  telecommunications 
 carriers  demonstrate  the  showing  required  by  section  109(  b)(  1).  Section  109(  b)(  1)  requires  the  Commission  to  determine,  upon  petition,  whether  compliance  with  section  103  is  reasonably  achievable 
 for  any  equipment,  facility,  or  service  installed  or  deployed  after  January  1,  1995.  Unless  the  evidence  demonstrates  that  the  petitioner  has  comprehensively  considered  how  to  become  compliant  with  CALEA 
 section  103,  it  would  be  difficult  for  the  Commission  to  conclude  that  section  103  compliance  is  not  reasonably  achievable.  Simply  put,  the  evidence  must  demonstrate  that  alternative  solutions  were  not 
 reasonably  achievable.  108 


 section  109(  b)  does  not  provide  relief  on  those  grounds.  We  therefore  adopt  our  tentative  conclusion  that  the  requirements  of  section  109(  b)  would  not  be  met  by  a  petitioning  telecommunications  carrier  that  merely  asserted 
 that  CALEA  standards  had  not  been  developed,  or  that  solutions  were  not  readily  available  from  manufacturers.  See  DOJ  Comments  at  70-  71. 


 This  interpretation  is  further  supported  by  section  107(  a)(  3)  that  provides  that  the  absence  of  industry  standards  does  not  relieve  an  entity  from  its  section  103  capability  requirements.  Section  107(  a)(  3)  provides: 
 (3)  ABSENCE  OF  STANDARDS.  --  The  absence  of  technical  requirements  or  standards  for  implementing  the  assistance  capability  requirements  of  section  103  shall  not  -- 


 (A)  preclude  a  telecommunications  carrier,  manufacturer,  or  telecommunications  support  services  provider  from  deploying  a  technology  or  service;  or 
 (B)  relieve  a  carrier,  manufacturer,  or  telecommunications  support  services  provider  of  the  obligations  imposed  by  section  103  or  106,  as  applicable. 
 CALEA  section  107(  a)(  3);  47  U.  S.  C.  1006(  a)(  3). 
 106  Notice,  19  FCC  Rcd  at  15728,  para.  105;  see  DOJ  Comments  at  70-  71. 


 107  See  DOJ  Comments  at  71. 
 108  Id.  at  69. 
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 48.  To  meet  this  requirement,  the  petitioner  may  need  to  compare,  for  example,  the  cost  of  making  annual  payments  to  a  trusted  third  party  for  a  CALEA  service  for  a  number  of  years  to  the  cost  of 
 purchasing  equipment  and/  or  systems  up  front  that  enable  the  petitioner  to  meet  CALEA  capability  requirements  themselves.  Some  solutions  may  include  both  elements:  leasing  capabilities  and  buying 
 equipment.  In  addition,  the  petitioner  may  also  seek  to  include  recurring  CALEA-  specific  operations  costs  in  the  cost  calculation.  Thus,  it  is  necessary  to  capture  the  impact  of  delayed  vs.  immediate 
 expenditures  in  calculating  the  total  cost  of  any  solution,  and  to  express  the  cost  of  alternative  solutions  in  comparable  dollars.  A  calculation  of  the  (net)  present  value  or  present  worth  of  expenditures  of  the 
 solution  is  a  recognized  way  to  accomplish  this  dual  purpose.  109 
 49.  Our  analysis  and  conclusions  here  do  not  compel  telecommunications  carriers  to  adopt  any  particular  equipment,  facility,  service,  or  feature  or  any  specific  design  of  equipment,  facilities, 


 services,  features,  or  system  configurations.  110  Service  providers  are  free  to  configure  and  build  their  systems  any  way  they  choose.  But  a  service  provider  that  seeks  cost  recovery  relief  pursuant  to  section 
 109(  b)(  1)  must  demonstrate  that  CALEA  compliance  per  se  is  not  reasonably  achievable.  A  petition  must  include  persuasive  evidence  that  the  petitioner  cannot  afford  to  achieve  compliance  through  network 
 upgrades  or  equipment  retrofits.  It  must  include  a  demonstration  that  the  petitioners  preferred  CALEA  solution  is  not  reasonably  achievable  and  that  no  alternative  CALEA  solution  is  reasonably  achievable, 
 including  alternative  manufacturer-  provided  service  packages,  services  provided  by  TTPs,  and  sharing  arrangements  with  other  service  providers.  111 


 50.  A  due  diligence  showing  is  particularly  necessary  to  enable  us  to  consider  whether  section  109(  b)(  1)  relief  is  appropriate  in  cases  where  CALEA  standards  have  not  been  developed  and/  or 
 CALEA  solutions  are  not  generally  available.  We  reject  the  idea  that  we  may  grant  section  109(  b)(  1)  relief  merely  because  standards  have  not  been  developed  or  solutions  are  not  generally  available.  112  We 
 therefore  adopt  our  tentative  conclusion  that  the  requirements  of  section  109(  b)(  1)  would  not  be  met  by  a  petitioning  telecommunications  carrier  that  merely  asserted  that  CALEA  standards  had  not  been 
 developed,  or  that  solutions  were  not  readily  available  from  manufacturers.  113 
 51.  Nevertheless,  we  emphasize  that  section  109(  b)(  1)  s  due  diligence  analysis  is  fact-specific  and  will  take  into  account,  for  example,  the  resources  of  the  petitioner.  We  recognize  that  some 


 telecommunications  carriers,  particularly  small  telecommunications  carriers,  may  conclude  that  they  cannot  afford  the  efforts  required  to  develop  their  own  solutions.  Thus,  for  example,  a  small  rural 
 telecommunications  carrier  might  provide  evidence  that  the  lack  of  industry  standards  and  solutions,  coupled  with  its  lack  of  financial  resources,  would  justify  a  finding  that  the  small  telecommunications 


 109  See,  e.  g.,  Stephen  A.  Ross,  Randolph  A.  Westerfield  &  Jeffrey  Jaffe,  Corporate  Finance  at  178-  210  (7  th  ed. 
 2005).  See  Appendix  E,  infra,  at  Sections  VI.  C.  5  and  VI.  D.  3.  We  decline  to  specify  any  particular  methodology  for  calculating  present  value/  worth,  or  to  set  input  parameters,  which  include  for  example,  the  interest/  discount  rate 


 and  the  length  of  study  period.  Nevertheless,  whichever  methodology  and  input  parameters  that  the  petitioner  uses  must  be  consistent  with  the  petitioners  and  the  industrys  best  practices,  and  they  must  be  used  consistently  in 
 determining  the  present  value  of  all  solutions  presented  in  the  petition.  110 
 See  CALEA  section  103(  b)(  1)(  A),  (B);  47  U.  S.  C.  1002(  b)(  1)(  A),  (B).  111 
 See  DOJ  Comments  at  69-  71;  DOJ  Reply  Comments  at  33-  34.  112 
 See  para.  27,  supra.  113 
 Notice,  19  FCC  Rcd  at  15725-  26,  para.  98,  and  15728-  29,  para.  105;  see  DOJ  Comments  at  70. 
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 carrier  had  met  its  due  diligence  requirements  by  proffering  only  one  solution,  so  long  as  it  is  a  bona  fide  solution.  114 
 52.  We  expect  that  significant  progress  in  developing  CALEA  standards  and  solutions  for  broadband  Internet  access  and  interconnected  VoIP  services  will  be  achieved  during  the  18-  month 
 compliance  period.  We  expect  that  few  if  any  petitioners  could  successfully  demonstrate  the  due  diligence  necessary  to  support  a  section  109(  b)(  1)  petition  until  the  close  of  the  transition.  We  in  fact 
 expect  broadband  Internet  access  and  interconnected  VoIP  providers  to  utilize  that  transition  period  as  an  opportunity  to  promote  the  development  of  CALEA  standards  and  solutions.  Failure  to  utilize  this 
 opportunity,  or  to  document  steps  taken  to  promote  CALEA  compliance  throughout  the  transition  period,  will  seriously  damage  a  petitioners  chances  of  obtaining  section  109(  b)(  1)  relief.  115 


 d.  Section  109(  b)(  1)  s  Eleven  Criteria 
 53.  In  determining  whether  a  telecommunications  carrier  has  successfully  demonstrated  that  compliance  with  a  CALEA  section  103  assistance  capability  requirement  is  not  reasonably  achievable 
 pursuant  to  section  109(  b)(  1),  the  Commission  must  examine  the  11  statutory  criteria  set  out  in  section  109(  b)(  1).  We  affirm  the  Commissions  tentative  conclusion  in  the  Notice  that  the  Commission  need  not 
 weigh  equally  all  11  criteria,  and  its  tentative  conclusion  that  we  should  assign  greater  weight  to  national  security  and  public  safety-  related  concerns.  116  We  also  conclude  that  we  should  require  petitioners  to 
 include  in  their  showing  precisely  identified  CALEA  section  103  capability  requirements  and  equipment,  facilities,  or  services  for  which  relief  is  sought.  We  affirm  our  finding  in  the  Notice  that 
 under  the  requirements  of  section  109(  b)(  1)(  B)  and  109(  b)(  1)(  D),  petitioners  must  include  a  thorough  analysis  of  precisely  identified  costs  to  satisfy  CALEA  obligations,  as  well  as  their  effects  on  local 
 service  ratepayers,  where  relevant;  general  allegations  that  projected  costs  were  too  high  or  unreasonably  burdensome  will  not  suffice.  We  direct  parties  attention  to  the  cost  discussion  in  the 
 previous  CALEA  Second  Report  and  Order,  and  we  reaffirm  our  determination  there  that  costs  not  directly  related  to  CALEA  compliance  may  not  be  included  in  section  109(  b)  petitions.  117 


 54.  To  provide  further  guidance  as  to  how  the  Commission  will  apply  consideration  of  the  eleven  section  109(  b)(  1)  evaluative  criteria  in  particular  cases,  we  provide  the  discussion  set  out  below. 
 We  nevertheless  caution  interested  persons  that  these  guidelines  are  intended  to  provide  general  guidance  only.  The  Commission  will  examine  each  section  109(  b)  petition  based  on  the  facts  contained  therein  and 
 in  the  context  of  a  specific  analysis  of  national  security  factors  and  other  factors  that  exist  at  that  time.  Section  109(  b(  1)  directs  the  Commission  to  examine  the  following  criteria: 


 (A)  The  effect  on  public  safety  and  national  security.  Because  the  purpose  of  the  CALEA  statute  is  to  ensure  public  safety  and  national  security,  this  criterion  is  critically  important.  In  a  particular 
 114  By  bona  fide  solution  we  mean  a  solution  that  could  be  implemented  as  described  by  petitioner  if  we  grant  its 
 section  109(  b)  petition  and  the  Attorney  General  subsequently  agrees  to  pay  for  costs  pursuant  to  section  109(  b)(  2)(  A). 


 115  In  connection  with  our  decision  that  persuasive  evidence  must  be  submitted  to  prove  cost  and  other  economic 
 impact-  related  assertions,  we  adopt  our  tentative  conclusion  that  petitioners  must  include  copies  of  all  offers,  bids,  and  price  lists  negotiated  with  manufacturers  and  third  party  CALEA  service  providers. 


 116  Section  109(  b)(  1)(  A),  47  U.  S.  C.  1008(  b)(  1)(  A). 
 117  Second  Report  and  Order,  CC  Docket  No.  97-  213,  15  FCC  Rcd  at  7132-  33,  para.  46. 
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 case,  the  Commission  will  consider  all  relevant  evidence  submitted  by  LEAs  per  this  criterion,  as  well  as  recommendations  about  how  this  criterion  should  be  applied  to  submitted  evidence  and  what  weight 
 should  be  assigned  to  such  evidence  in  our  particular  deliberations.  We  will  also  consider  all  relevant  evidence  submitted  by  a  petitioner,  including  evidence  about  the  number  of  electronic  surveillance 
 requests  it  has  received  from  LEAs  for  the  five  (5)  year  period  prior  to  submission  of  its  section  109(  b)  petition.  118  We  will  consider  this  latter  evidence  in  connection  with  evaluating  application  of  the  instant 
 criterion  as  well  as  evaluating  other,  cost-  related  criteria  set  out  in  section  109(  b)(  1)(  A)  through  (K). 
 (B)  The  effect  on  rates  for  basic  residential  telephone  service.  Application  of  this  factor  affects  only  evaluation  of  section  109(  b)  petitions  submitted  by  residential  telephone  service  providers  subject  to 
 the  Commissions  Part  36  regulation.  119  Its  relevance  will  be  decisively  affected  by  how  the  Commission  decides  to  implement  jurisdictional  separations  policy  pursuant  to  the  directive  set  out  in  47  U.  S.  C.   
 229(  e)(  3).  120 
 (C)  The  need  to  protect  the  privacy  and  security  of  communications  not  authorized  to  be  intercepted.  A  petitioner  must  submit  persuasive  evidence  why  solution(  s)  described  in  its  petition  could 
 not  protect  the  privacy  and  security  of  customer  communications.  In  instances  where  the  petition  presents  evidence  about  TTP  services,  the  petitioner  must  present  persuasive  evidence  that  the  TTP(  s)  cannot  or 
 will  not  provide  privacy  and  security  protection. 
 (D)  The  need  to  achieve  the  capability  assistance  requirements  of  section  103  by  cost-  effective  methods.  A  petitioner  must  submit  persuasive  evidence  showing  that  all  identified  solutions,  including 
 those  provided  by  equipment  vendors  121  and  other  manufacturers,  TTPs,  or  solutions  that  the  petitioner  proposes  to  develop  for  itself,  would  impose  a  significant  difficulty  or  expense  within  the  meaning  of 
 the  statute.  122  In  the  event  that  there  is  no  industry  standard  or  available  market  solution  at  the  time  that  a  telecommunications  carrier  files  its  petition,  the  telecommunications  carrier  would  need  to  demonstrate 
 that  implementation  of  its  own  proposed  solution  would  impose  a  significant  expense. 
 (E)  The  effect  on  the  nature  and  cost  of  the  equipment,  facility,  or  service  at  issue.  In  addition 


 118  See  DOJ  Comments  at  67,  69. 
 119  47  C.  F.  R.  Part  36. 
 120  See  also  Notice,  19  FCC  Rcd  at  15740-  42,  paras.  136-  139,  and  discussion,  infra,  at  paras.  69-  74. 
 121  We  note  that  GVNW  and  DOJ  contend  that  equipment  vendors  often  bundle  a  CALEA  feature  with  other  switch 
 features/  upgrades,  thereby  requiring  a  carrier  to  purchase  an  upgrade  that  includes  features  other  than  the  CALEA  feature  itself.  See  GVNW  Comments  at  7-  8,  DOJ  Reply  Comments  at  61-  62.  A  petitioner  should  document  the 


 extent  to  which  this  is  the  case  with  respect  to  the  particular  CALEA  feature(  s)  it  must  purchase.  We  remind  equipment  vendors  that  they  have  a  separate  duty  under  section  106(  b)  of  CALEA  to  make  available  to 
 telecommunications  carriers  on  a  reasonably  timely  basis  and  at  a  reasonable  charge  features  or  modifications  as  are  necessary  to  permit  such  carriers  to  comply  with  the  capability  requirements  of  section  103.  See  47  U.  S.  C.   
 1005(  b).  In  light  of  this  separate  duty,  the  Commission  may  consider  whether  the  price  a  carrier  must  pay  for  a  CALEA  feature  is  attributable  solely  to  CALEA  compliance  or  is  partly  attributable  to  bundling  with  unrelated 
 software  upgrades  and  capabilities,  and  may  investigate  equipment  vendor  bundling  practices  to  determine  the  effects  such  practices  have  on  the  CALEA  costs  paid  by  carriers  or  whether  vendor  practices  are  consistent  with 
 vendors  duties  under  section  106(  b).  122 
 See  DOJ  Comments  at  71;  DOJ  Reply  Comments  at  43-  45. 
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 to  the  cost  showing  described  in  paragraph  (D),  the  petitioner  must  submit  persuasive  evidence  demonstrating  some  adverse  effect  on  its  facilities. 
 (F)  The  effect  on  the  operation  of  the  equipment,  facility,  or  service  at  issue.  In  addition  to  the  cost  showing  in  paragraph  (D),  the  petitioner  would  need  to  demonstrate  a  specific  adverse  effect  on  its 
 operations. 
 (G)  The  policy  of  the  United  States  to  encourage  the  provision  of  new  technologies  and  services  to  the  public.  The  petitioner  must  submit  persuasive  evidence  demonstrating  that  CALEA  requirements 
 were  preventing  it  from  deploying  a  specifically  identified  new  technology  or  service,  and/  or  persuasive  evidence  that  imposing  CALEA  requirements  would  require  it  to  take  a  technology  or  service  off  the 
 market. 
 (H)  The  financial  resources  of  the  telecommunications  carrier.  A  showing  under  this  factor  would  be  similar  to  the  showing  under  factor  (D).  The  petitioner  must  present  financial  resource 
 documentation,  including  current  balance  sheets  and  a  complete  analysis  of  debt  and  equity  financing  resources  that  are  available.  If  the  particular  petitioner  is  a  small  and  rural  telecommunications  carrier, 
 this  must  include  a  description  and  analysis  of  all  funding  and  loan  guarantee  sources  available  from  state  and  federal  assistance  programs.  Where  relevant,  all  telecommunications  carriers  must  provide  evidence 
 showing  how  state  and  local  regulation  affects  the  availability  or  use  of  its  financial  resources.  For  example,  telecommunications  carriers  regulated  by  state  Public  Utility  Commissions  should  describe  in 
 detail  how  Commission-  approved  depreciation  schedules  can  be  modified  to  provide  for  capital  equipment  acquisition  on  terms  more  favorable  than  currently  negotiated  and  approved  terms,  or  provide 
 evidence  that  such  schedules  cannot  be  modified.  Per  this  criterion,  the  petitioner  must  submit  persuasive  evidence  that  demonstrates  that  its  current  financial  resources  and  financial  resources  generally  available 
 to  it  are  not  or  would  not  be  sufficient  to  prevent  the  imposition  of  significant  difficulty  or  expense  as  defined  by  CALEA  section  109(  b)(  1).  123 


 (I)  The  effect  on  competition  in  the  provision  of  telecommunications  services.  Under  this  factor,  the  petitioner  would  need  to  submit  persuasive  evidence  that  demonstrate  a  specific  and 
 quantifiable  harm. 
 (J)  The  extent  to  which  the  design  and  development  of  the  equipment,  facility,  or  service  was  initiated  before  January  1,  1995.  This  factor  is  self-  explanatory.  In  most  if  not  all  cases,  it  will  not 
 apply  to  facilities-  based  broadband  Internet  access  and  interconnected  VoIP. 
 (K)  Such  other  factors  as  the  Commission  determines  are  appropriate.  This  provision  enables  the  Commission  to  evaluate  factors  that  may  arise  on  a  case  by  case  basis,  that  were  difficult  for  Congress 
 to  predict  when  enacting  the  statute,  and  are  difficult  for  the  Commission  to  predict  during  a  rulemaking. 


 123  See  DOJ  Comments  at  67. 
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 55.  Appendix  E,  attached  hereto,  sets  forth  filing  instructions  explaining  the  specific  information  telecommunications  carriers  should  include  in  their  section  109(  b)  petitions.  Appendix  E 
 reflects  the  proposal  in  the  Notice,  consideration  of  the  record  in  this  proceeding,  and  our  further  analysis  herein  of  the  statutes  requirements. 


 56.  Some  small  telecommunications  carriers  have  urged  us  to  allow  telecommunications  carriers  filing  section  109(  b)(  1)  petitions  to  pool  their  applications  under  one  general  application  petition 
 and,  as  a  result,  more  efficiently  present  common  arguments  and  save  the  costs  of  submitting  individual  petitions,  each  of  which  would  be  assessed  the  $5200  filing  fee.  We  conclude  that  this  is  inappropriate 
 given  the  requirements  imposed  by  section  109(  b)(  1).  124  Section  109(  b)(  1)  requires  a  detailed  presentation  of  evidence  that  section  103  compliance  is  not  reasonably  achievable.  Petitioners  are 
 required  to  submit  evidence  that  demonstrates  this  in  connection  with  precisely  identified  services,  equipment,  and  facilities.  These  will  differ  from  carrier  to  carrier.  Additionally,  petitioners  are  required 
 to  identify  cost  and  financial  resources  information  that  is  detailed  and  highly  telecommunications  carrier-specific.  Even  if  we  were  to  accept  jointly  pooled  section  109(  b)(  1)  petitions,  we  would,  by  operation  of 
 the  statute,  need  to  separate  each  separate  telecommunications  carrier  petition  for  individual  assessment.  This  individual  assessment  will  impose  predictable  costs. 


 3.  Confidential  Treatment  of  Section  107(  c)(  1)  and  Section  109(  b)(  1)  Petitions 
 57.  In  addition  to  highly  sensitive  cost  and  financial  resources  information,  section  107(  c)(  1)  and  section  109(  b)(  1)  petitions  are  likely  to  contain  specific  information  regarding  the  inability  of 
 telecommunications  equipment,  facilities,  and  services  to  comply  with  CALEA  standards.  The  facts  underlying  discrete  section  107(  c)  and  section  109(  b)  adjudicatory  proceedings  could  also  involve  highly 
 sensitive  information  about  LEA  activities.  We  therefore  believe  that  section  107(  c)  and  section  109(  b)  filings  would  be  entitled  to  confidential  treatment  under  the  Freedom  of  Information  Act  (FOIA)  and  the 
 Commissions  rules.  125  Accordingly,  we  direct  petitioners  to  file  their  petitions  under  a  general  claim  of  confidential  or  proprietary  protection,  subject  only  to  scrutiny  by  the  Commission  and  the  Attorney 
 General  who  is  consulted  in  section  107(  c)  adjudications  and  is  a  party  to  all  section  109(  b) 


 124  See  DOJ  Reply  Comments  at  43  n.  164. 
 125  Specifically,  we  believe  that  this  information  could  be  withheld  from  public  disclosure  under  FOIA  Exemption  4, 
 5  U.  S.  C.    552(  b)(  4),  which  protects  trade  secrets  and  commercial  or  financial  information  obtained  from  a  person  and  privileged  or  confidential.  FOIA  Exemption  4  also  has  been  construed  to  protect  information  obtained  by  the 


 government  that  could  impair  the  effectiveness  of  a  government  program  such  as  CALEA.  See,  e.  g.,  Critical  Mass  Energy  Project  v.  NRC,  975  F.  2d  871,  879  (D.  C.  Cir.  1992)  (noting  that  Exemption  4  protects  a  governmental 
 interest  in  administrative  efficiency  and  effectiveness);  Natl  Parks  and  Conservation  Assn  v.  Morton,  498  F.  2d  765,  770  n.  17  (D.  C.  Cir.  1974)  (noting  that  other  governmental  interests  may  be  embodied  in  this  exemption).  The 
 Commission  applied  this  rationale  in  the  outage  reports  proceeding,  specifically  finding  that  it  was  obliged  under  Exemption  4  to  consider  any  adverse  impact  that  disclosure  might  have  on  government  programs.  See  New  Part  4 
 of  the  Commissions  Rules  Concerning  Disruptions  to  Communications,  19  FCC  Rcd  16830,  16855  (2004).  We  also  believe  that  this  information  could  be  withheld  from  disclosure  under  FOIA  Exemption  7(  F),  5  U.  S.  C.   
 552(  b)(  7)(  F),  which  protects  records  compiled  for  law  enforcement  purposes  that  could  reasonably  be  expected  to  endanger  the  life  or  physical  safety  of  any  individual.  See  47  C.  F.  R.    0.457;  see  also  Living  Rivers,  Inc.  v.  United 
 States  Bureau  of  Reclamation,  272  F.  Supp.  2d  1313,  1321  (D.  Utah  2003)(  allowing  information  about  inundation  dams  to  be  withheld  under  FOIA  Exemption  7(  F)  as  sensitive,  homeland  security  information  that  could  prove 
 deadly  if  obtained  by  those  seeking  to  do  harm  to  the  public  on  a  large  scale). 
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 adjudications.  126  Petitioning  telecommunications  carriers  are  not  required  to  request  separately  confidential  treatment  for  the  information  submitted  in  their  petitions.  127  However,  petitioners  must  mark 
 the  top  of  each  page  of  their  petitions:  Confidential    Not  for  Public  Inspection.  We  further  conclude  that,  pursuant  to  section  0.457(  g)  of  the  Commissions  rules,  the  information  provided  by 
 telecommunications  carriers  in  these  CALEA  proceedings  will  not  be  made  routinely  available  for  public  inspection.  128  No  commenter  disagrees  with  this  approach. 


 4.  Monitoring  Reports 
 58.  In  its  Petition,  Law  Enforcement  requested  that  the  Commission  impose  a  new  compliance  regime  consisting  of  standardized  CALEA  compliance  benchmarks  for  packet  technologies. 
 Under  this  proposal,  limited  compliance  extensions  generally  would  be  granted  only  if  providers  of  services  that  use  packet  technologies  agreed  to  meet  the  proposed  benchmarks.  129  Most  LEAs  supported 
 this  proposal;  nearly  everyone  else  opposed  it  as  exceeding  or  contravening  the  explicit  terms  of  the  statute.  We  decline  at  this  time  to  adopt  the  Law  Enforcement  benchmark  proposal.  As  we  stated  in  the 
 Notice,  we  conclude  that  the  interpretation  of  CALEA  that  we  adopt  in  this  Second  Report  and  Order,  particularly  of  CALEA  sections  107(  c)  and  109(  b),  will  better  promote  law  enforcements  stated  objective 
 that  all  telecommunications  carriers  should  become  compliant  with  CALEA  requirements  as  soon  as  possible.  130 


 59.  Nevertheless,  we  share  Law  Enforcements  general  concern  that  telecommunications  carriers  timely  comply  with  CALEA  for  packet  technologies.  In  the  past,  telecommunications  carriers 
 progress  in  complying  with  CALEA  for  packet  technologies  was  effectively  monitored  in  two  ways:  by  the  FBI  when  it  administered  a  Flexible  Deployment  program  for  packet  technology,  and  by  the 
 Commission  in  administering  section  107(  c)  extension  petitions.  The  FBIs  Flexible  Deployment  program  no  longer  applies  to  packet  technology  and,  as  a  consequence  of  our  decision  here,  few 
 telecommunications  carriers  will  be  able  to  seek  extensions  under  section  107(  c).  With  information  from  these  programs  no  longer  available,  the  Commission  will  have  difficulty  identifying,  with  sufficient 
 forewarning,  impediments  to  timely  compliance  and  will  have  little  opportunity  to  assist  the  industry,  as  appropriate,  in  achieving  timely  compliance.  We  thus  conclude  that  all  telecommunications  carriers 
 providing  facilities-  based  broadband  Internet  access  or  interconnected  VoIP  services  shall  file  a  monitoring  report  with  the  Commission  which  will  help  the  Commission  ensure  that  providers  of  services 
 that  use  packet  technologies  become  CALEA  compliant  expeditiously.  Specifically,  with  respect  to  facilities-  based  broadband  Internet  access  providers  and  interconnected  VoIP  providers,  we  believe  that  a 
 monitoring  report  will  better  ensure  that  they  are  able  to  meet  the  May  14,  2007  CALEA  compliance  deadline.  A  sample  monitoring  report  (Form  XXX)  is  provided  in  attached  Appendix  G  to  this  Second 
 Report  and  Order.  These  monitoring  reports  are  separate  and  distinct  from  any  section  107(  c)  or  section 
 126  CALEA  sections  107(  c),  109(  b)(  1);  47  U.  S.  C.    1006(  c),  1008(  b)(  1). 
 127  47  C.  F.  R.    0.459(  a). 
 128  47  C.  F.  R.    0.457(  g).  Note,  however,  that  the  Commission  will  entertain  requests  under  section  0.461  of  its  rules 
 for  permission  to  inspect  these  records,  but  would  grant  such  request  only  in  the  event  the  requester  is  able  to  meet  the  requirements  of  section  0.461.  47  C.  F.  R.    0.461.  See  generally,  Treatment  of  Confidential  Information 


 Submitted  to  the  Commission,  Report  and  Order,  13  FCC  Rcd  24816  (1998).  129 
 Petition  at  34-  53.  130 
 Notice,  19  FCC  Rcd  at  15721-  22,  para.  91. 
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 109  filings  that  a  telecommunications  carrier  may  choose  to  make,  and  will  not  be  considered  substitutes  for  seeking  relief  under  those  provisions. 
 60.  Accordingly,  we  specify  the  following  procedure  for  these  monitoring  reports.  Once  OMB  approves  the  new  paperwork  collection  requirements  of  this  Second  Report  and  Order,  we  will 
 issue  a  public  notice  setting  forth  a  deadline  that  will  require  that  providers  of  all  such  services  to  submit  to  the  Commission  a  completed  Form  XXX,  briefly  describing  the  status  of  its  compliance  for  each 
 service  based  on  packet  technology,  e.  g.,  whether  the  service  already  complies,  whether  the  telecommunications  carrier  will  comply  with  an  identified  industry  standard  or  develop  an  ad  hoc 
 solution,  the  steps  the  telecommunications  carrier  is  undertaking  to  achieve  CALEA  compliance,  any  problems  with  manufacturer  support  or  network  installation,  and  the  date  compliance  is  anticipated. 
 Completed  Forms  XXX  will  not  be  made  available  to  the  public.  We  will,  however,  share  completed  Forms  XXX  with  DOJ/  FBI  so  that  they  may  evaluate  the  progress  each  provider  of  a  service  that  uses 
 packet  technology  is  making  to  achieve  CALEA  compliance.  Where  necessary,  we  may  request  additional  information  from  a  provider  regarding  its  efforts  to  become  CALEA  compliant  by  May  14, 
 2007  deadline. 
 61.  We  find  that  the  above  procedure  will  promote  expeditious  CALEA  compliance  by  providers  of  services  that  use  packet  technologies,  but  whose  services  are  not  yet  CALEA  compliant. 


 We  recognize  that  this  procedure  will  impose  an  increased  administrative  burden  on  such  providers,  but  anticipate  that  this  burden  will  be  minimal.  To  minimize  the  burden,  we  have  developed  a  relatively  short 
 reporting  form. 
 5.  Disposition  of  Pending  Section  107(  c)(  1)  Petitions 


 62.  As  discussed  above,  we  conclude  that  section  107(  c)  extension  relief  is  not  available  for  applications  that  include  equipment,  facilities  and  services  installed  or  deployed  on  or  after  October  25, 
 1998.  Accordingly,  once  OMB  approves  the  new  paperwork  collection  requirements  of  this  Second  Report  and  Order,  we  will  issue  a  Public  Notice  setting  forth  a  deadline  by  which  any 
 telecommunications  carrier  that  has  a  section  107(  c)  petition  on  file  with  us  shall  file  a  letter  that  attests  that  its  pending  petition  exclusively  concerns  equipment,  facilities  and  services  installed  or  deployed 
 before  October  25,  1998.  131  The  Commission  will  thereafter  dismiss  all  non-  conforming  petitions  and  petitions  for  which  clarifying  letters  have  not  been  received. 


 C.  ENFORCEMENT  OF  CALEA 
 63.  In  the  Notice,  we  considered  whether,  in  addition  to  the  enforcement  remedies  through  the  courts  available  to  LEAs  under  section  108  of  CALEA,  we  may  take  separate  enforcement  action 


 against  telecommunications  carriers,  manufacturers  and  providers  of  telecommunications  support  services  that  fail  to  comply  with  CALEA.  We  stated  that  we  appear  to  have  broad  authority  under  section  229(  a) 
 of  the  Communications  Act  to  promulgate  and  enforce  CALEA  rules  against  both  common  carriers  and 
 131  Telecommunications  carriers  and  others  may  also  file  amended  section  107(  c)  petitions  so  long  as  such  petitions 
 exclusively  seek  extensions  for  equipment,  facilities  and  services  installed  or  deployed  before  October  25,  1998.  A  petitioner  filing  an  amended  section  107(  c)  petitions  should  clearly  declare  on  the  face  of  the  petition  that  the 


 petition  has  been  filed  in  response  to  the  Commissions  action  in  the  Second  Report  and  Order  and  Memorandum  Opinion  and  Order  in  ET  Docket  No.  04-  295  and  that  it  solely  concerns  equipment,  facilities  and  services  installed 
 or  deployed  before  October  25,  1998,  along  with  that  information  set  out  and  described  in  Appendix  F,  infra. 
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 non-  common  carriers,  and  sought  comment  on  this  analysis.  We  also  sought  comment  on  whether  sections  108  and/  or  201  of  CALEA  impose  any  limitations  on  the  nature  of  the  remedy  that  we  may 
 impose  (e.  g.  injunctive  relief)  and  whether  section  106  of  CALEA  imposes  any  limitations  on  our  enforcement  authority  over  manufacturers  and  support  service  providers.  132 


 64.  Additionally,  we  sought  comment  in  the  Notice  on  how  we  would  enforce  the  assistance  capability  requirements  under  section  103  of  CALEA.  To  facilitate  enforcement,  we  tentatively 
 concluded  that,  at  a  minimum,  we  should  adopt  the  requirements  of  section  103  as  Commission  rules.  We  asked  whether,  given  this  tentative  conclusion,  the  lack  of  Commission-  established  technical 
 requirements  or  standards  under  CALEA  section  107(  b)  for  a  particular  technology  would  affect  our  authority  to  enforce  section  103.  Further,  we  asked  whether  there  are  other  provisions  of  CALEA,  such 
 as  section  107(  a)  s  safe  harbor  provisions,  that  the  Commission  should  adopt  as  rules  in  order  to  effectively  enforce  the  statute.  133  Moreover,  we  stated  in  the  Notice  that  we  believed  it  to  be  in  the  public 
 interest  for  covered  carriers  to  become  CALEA  compliant  as  expeditiously  as  possible  and  recognized  the  importance  of  effective  enforcement  of  our  rules  affecting  such  compliance.  We  sought  comment  on 
 whether  our  general  enforcement  procedures  are  sufficient  for  purposes  of  CALEA  enforcement  or  whether  we  should  implement  some  special  procedures  for  purposes  of  CALEA  enforcement.  We  also 
 sought  comment  on  any  other  measures  we  should  take  into  consideration  in  deciding  how  best  to  enforce  CALEA  requirements. 


 65.  Discussion.  DOJ  strongly  supports  the  Commission  enforcing  the  CALEA  rules  under  section  229(  a)  of  the  Communications  Act.  DOJ  contends  that  the  telecommunications  industry  has  in 
 many  instances  failed  to  cooperate  with  LEAs  and  has  delayed  establishing  CALEA  standards  and  implementing  new  wiretapping  technologies.  134  However,  industry  commenters  contend  that  CALEA 
 enforcement  authority  lies  exclusively  with  the  courts  under  CALEA  section  108.  135 
 66.  We  find  that  we  have  the  authority  under  section  229(  a)  to  enforce  CALEA,  as  that  section  gives  us  authority  to  prescribe  such  rules  as  are  necessary  to  implement  the  requirements  of  the 


 Communications  Assistance  for  Law  Enforcement  Act.  136  As  we  observed  in  the  Notice,  section  229(  a)  provides  broad  authority  for  the  Commission  to  adopt  rules  to  implement  CALEA  and,  unlike  section 
 229(  b)  does  not  limit  our  rulemaking  authority  to  common  carriers.  137  While  the  penalties  provision  of  section  229(  d)  refers  to  CALEA  violations  by  the  carrier,  section  229(  d)  does  not  limit  the 
 Commissions  general  enforcement  authority  under  the  Communications  Act.  138  We  thus  conclude  that 
 132  Notice,  19  FCC  Rcd  at  15732-  33,  para.  114.  Section  106  requires  a  manufacturer  of  telecommunications 
 transmission  or  switching  equipment  and  a  provider  of  telecommunications  support  services  to  make  available,  on  a  reasonably  timely  basis  and  at  a  reasonable  charge,  to  a  carrier  that  uses  its  equipment,  facilities  or  services  the 


 features  or  modifications  as  necessary  to  allow  the  carrier  to  comply  with  the  assistance  capability  requirements  of  Section  103  and  the  capacity  requirements  of  Section  104.  47  U.  S.  C.    1005(  b). 
 133  Notice,  19  FCC  Rcd  at  15733,  para.  115. 
 134  DOJ  Comments  at  80-  81;  DOJ  Reply  Comments  at  48-  50. 
 135  BellSouth  Comments  at  38;  CTIA  Comments  at  10;  Motorola  Comments  at  20;  Nextel  Comments  at  11;  SBC 
 Comments  at  24-  25;  T-  Mobile  Comments  at  26;  TIA  Comments  at  4;  US  ISPA  Comments  at  41.  136 
 47  U.  S.  C.    229(  a).  137 
 47  U.  S.  C.    229(  b).  138 
 Section  229(  d)  provides: 
 Footnote  continued  on  the  next  page. 
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 the  Commission  has  general  authority  under  the  Communications  Act  to  promulgate  and  enforce  CALEA  rules  against  carriers  as  well  as  non-  common  carriers.  We  also  conclude  that  section  106  of  CALEA  does 
 not  limit  our  authority  to  promulgate  and  enforce  CALEA  rules  against  manufacturers  and  support  service  providers.  Accordingly,  we  find  that,  contrary  to  commenters  who  argued  that  authority  to  enforce 
 CALEA  lies  exclusively  with  the  courts  under  CALEA  section  108,  139  we  have  the  authority  to  prescribe  CALEA  rules  and  investigate  the  compliance  of  those  carriers  and  providers  subject  to  such  rules. 
 Additionally,  under  the  Communications  Act,  the  Commission  has  broad  authority  to  enforce  its  rules.  It  can,  for  example,  issue  monetary  forfeitures  and  cease  and  desist  orders  against  common  carriers  and  non-common 
 carriers  alike  for  violations  of  Commission  rules.  140 
 67.  We  also  conclude  that  sections  108  and  201  of  CALEA  do  not  limit  the  nature  of  the  remedy  that  the  Commission  may  impose.  141  Whereas  court  actions  under  sections  108  and  201  would 


 typically  follow  a  failed  attempt  by  a  carrier  to  comply  with  an  electronic  surveillance  order,  the  Commission  may  pursue  enforcement  actions  against  any  carrier  for  failure  to  ensure  that  its  equipment, 
 facilities  or  services  are  capable  of  providing  the  assistance  capability  requirements  prior  to  receiving  an  electronic  surveillance  request.  Thus,  the  Commissions  enforcement  authority  is  complementary  to,  not 
 duplicative  of,  the  authority  granted  LEAs  under  sections  108  and  201. 
 68.  We  observe  that  the  Commissions  rules  already  include  various  CALEA  requirements  that  we  may  enforce,  including  system  security  and  records  management  requirements  for  all  carriers 


 subject  to  CALEA  and  assistance  capability  requirements  for  wireline,  cellular  and  PCS  carriers.  142  Our  existing  rules  for  wireline,  cellular  and  PCS  carriers  already  state  that  these  carriers  are  to  comply  with 
 the  assistance  capability  requirements  in  section  103;  however,  we  have  not  previously  codified  this  requirement  for  other  carriers  subject  to  CALEA.  We  thus  adopt  our  tentative  conclusion  to  codify  this 
 statutory  requirement  and  thereby  clarify  that  all  carriers  subject  to  CALEA  are  to  comply,  at  a  minimum,  with  the  assistance  capability  requirements  of  section  103.  143  This  action  will  facilitate  the  Commissions 
 enforcement  of  CALEA.  We  recognize  that,  in  the  absence  of  Commission  action  to  specify  more  precise 


 For  purposes  of  this  Act,  a  violation  by  an  officer  or  employee  of  any  policy  or  procedure  adopted  by  a  common  carrier  pursuant  to  subsection  (b),  or  of  a  rule  prescribed  by  the  Commission  pursuant  to 
 subsection  (a),  shall  be  considered  to  be  a  violation  by  the  carrier  of  a  rule  prescribed  by  the  Commission  pursuant  to  this  Act. 


 47  U.  S.  C.    229(  d).  139 
 47  U.  S.  C.    1007.  140 
 See,  e.  g.,  47  U.  S.  C.    312(  b),  503(  b).  We  conclude  that,  at  this  time,  we  will  not  adopt  any  special  procedures  to  enforce  CALEA  and  instead  will  rely  on  the  complaint  and  investigation  procedures  already  in  our  rules. 


 141  18  U.  S.  C.    2522(  a)  (where  a  court  issuing  a  surveillance  order  finds  that  a  telecommunications  carrier, 
 manufacturer,  or  support  services  provider  has  failed  to  comply  with  CALEA,  the  court  may  direct  such  entity  to  comply);  18  U.  S.  C.    2522(  b)  (the  Attorney  General  may,  in  a  civil  action  in  the  United  States  district  court,  obtain 


 an  order  in  accordance  with  section  108  of  CALEA,  directing  that  a  telecommunications  carrier,  manufacturer,  or  support  services  provider  comply  with  CALEA);  18  U.  S.  C.    2522(  c)  (authorizing  a  court  to  impose  a  civil  penalty 
 of  up  to  $10,000  per  day  against  a  telecommunications  carrier,  manufacturer,  or  support  services  provider  for  each  day  in  violation  after  the  issuance  of  a  court  order  requiring  compliance). 
 142  See,  e.  g.,  47  C.  F.  R.    22.1100-  22.1103;  24.900-  24.903;  64.2200-  64.2203. 
 143  We  are  codifying  our  rules  for  all  carriers  subject  to  CALEA  in  new  Subpart  Z  of  Part  1  of  our  rules.  In  doing 
 so,  we  consolidate  existing  CALEA  rules  into  this  Subpart.  See  paras  81-  82,  infra. 
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 requirements  in  response  to  a  section  107  (b)  deficiency  petition,  as  we  did  previously  regarding  J-  STD-025,  our  rule  sets  forth  a  minimum  requirement  that  carriers,  manufacturers  and  support  service  providers 
 may  satisfy  in  various  ways  (e.  g.,  implementing  an  industry  standard,  ad  hoc  or  interim  solution).  144  Nonetheless,  this  does  not  diminish  our  resolve  to  consider  carefully  a  bona  fide  complaint  that  a  carrier, 
 manufacturers  or  support  service  provider  has  not  provided  the  necessary  assistance  capabilities  and  to  take  appropriate  enforcement  action. 


 D.  COST  RECOVERY  ISSUES 
 69.  In  the  Notice,  the  Commission  sought  comment  on  a  number  of  issues  related  to  the  recovery  of  CALEA  compliance  costs,  including  the  nature  of  such  costs  and  from  which  parties  the  costs 


 could  be  recovered.  145  The  Commission  also  inquired  into  CALEA  cost  recovery  pursuant  to  intercept  statutes.  146  The  Commission  further  sought  comment  on  whether  specific  cost  recovery  rules  should  be 
 adopted  to  help  ensure  that  small  and  rural  carriers  can  become  CALEA-  compliant.  147  Acting  pursuant  to  section  229(  e)(  3)  of  the  Communications  Act,  the  Commission  also  referred  to  the  Federal-  State  Joint 
 Board  on  Jurisdictional  Separations  (Joint  Board)  the  following  question:  whether  CALEA  compliance  costs  should  be  separated  between  intrastate  and  interstate  jurisdictions,  and,  if  so,  how  the  associated 
 costs  and  revenues  should  be  allocated.  148  Because  of  the  importance  of  the  issues,  the  Commission  asked  the  Joint  Board  to  issue  recommendations  within  a  year  of  the  release  of  the  Notice,  by  August  9,  2005.  149 
 The  Joint  Board,  however,  has  not  yet  issued  its  recommendation. 
 70.  In  the  Notice,  the  Commission  tentatively  concluded  that  carriers  bear  responsibility  for  CALEA  development  and  implementation  costs  for  post-  January  1,  1995  equipment  and  facilities.  150  We 
 affirm  this  tentative  conclusion.  Cost  recovery  from  the  federal  government  under  CALEA  section  109  turns  on  whether  equipment  and  facilities  were  deployed  before  or  after  January  1,  1995.  151  CALEA 
 section  109  placed  financial  responsibility  on  the  federal  government  for  CALEA  implementation  costs  related  to  equipment  deployed  on  or  before  January  1,  1995.  152  If  the  federal  government  refused  to  pay 
 for  such  modifications,  a  carriers  pre-  1995  deployed  equipment  and  facilities  are  considered  CALEA  compliant  until  such  equipment  or  facility  is  replaced  or  significantly  upgraded  or  otherwise  undergoes 


 144  The  absence  of  technical  requirements  or  standards  for  implementing  the  assistance  capability  requirements  of 
 section  103  does  not  relieve  a  carrier,  manufacturer,  or  support  services  provider  of  its  CALEA  obligations.  47  U.  S.  C.    107(  a)(  3). 


 145  Notice,  19  FCC  Rcd  at  15734-  42,  paras.  117-  39. 
 146  Id.  at  15739-  40,  paras.  132-  33. 
 147  Id.  at  15739,  para.  131. 
 148  Id.  at  15741,  para.  138. 
 149  Id. 
 150  Id.  at  15737,  para.  125. 
 151  Compare  47  U.  S.  C.    1008(  a),  (d)  with    1008(  b). 
 152  Section  109(  a),  (d)  of  CALEA,  47  U.  S.  C.    1008(  a),  (d). 
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 major  modification  for  purposes  of  normal  business  operations.  153  On  the  other  hand,  for  CALEA  implementation  costs  associated  with  equipment  deployed  after  January  1,  1995,  CALEA  section  109 
 places  financial  responsibility  on  the  telecommunications  carriers  unless  the  Commission  determines  compliance  is  not  reasonably  achievable.  154  Only  in  that  event  may  the  Attorney  General  agree  to  pay 
 carriers  the  additional  reasonable  costs  of  making  compliance  .  .  .  reasonably  achievable.  155  Based  on  CALEAs  clear  delineation  of  responsibility  for  compliance  costs,  we  conclude  that  carriers  bear 
 responsibility  for  CALEA  development  and  implementation  costs  for  post-  January  1,  1995  equipment  and  facilities,  absent  a  finding  that  compliance  is  not  reasonably  achievable  pursuant  to  CALEA  section 
 109(  b).  156 
 71.  In  the  Notice,  the  Commission  acknowledged  its  prior  statement  regarding  the  ability  of  carriers  to  recover  a  portion  of  their  CALEA  capital  costs  through  electronic  surveillance  order  charges 
 imposed  on  LEAs,  and  that  this  statement  was  made  without  the  benefit  of  a  complete  and  full  record  on  the  issue.  157  The  Commission  made  this  observation  as  one  of  several  aspects  that  mitigated  the  cost 
 burden  on  carriers  of  implementing  four  CALEA  punch  list  items.  158  However,  because  we  now  conclude  that  CALEA  section  109  provides  the  exclusive  mechanism  by  which  carriers  may  recover  from  law 
 enforcement  capital  costs  associated  with  meeting  the  capability  requirements  of  CALEA  section  103,  159  the  Commissions  prior  statement  was  incorrect  to  the  extent  it  suggested  that  carriers  may  recover 
 CALEA  capital  costs  through  intercept  charges.  As  discussed  above,  CALEA  specifically  addresses  the  allocation  of  responsibility  for  compliance  costs.  CALEA  section  109  makes  the  federal  government 
 responsible  for  compliance  costs  for  the  period  on  or  before  January  1,  1995,  and  places  the  responsibility  for  compliance  costs  after  January  1,  1995  on  carriers,  absent  a  finding  that  compliance  is  not  reasonably 
 achievable  pursuant  to  CALEA  section  109(  b).  160  Allowing  carriers  to  recover  CALEA  compliance  costs  from  the  government  through  other  means,  such  as  through  intercept  charges,  would  be  inconsistent  with 
 the  cost  recovery  methodology  set  forth  in  CALEA  section  109  because  it  would  disrupt  the  cost  burden  balance  between  law  enforcement  and  carriers  carefully  crafted  by  Congress  in  enacting  CALEA.  In 
 short,  as  DOJ  notes,  it  would  essentially  allow  carriers  to  do  an  end-  run  around  the  provisions  of  section  109(  b)  and  Congressional  intent.  161  We  therefore  conclude  that,  while  carriers  possess  the 


 153  Section  109(  d)  of  CALEA,  47  U.  S.  C.    1008(  d).  See  also  CALEA  section  108(  c)(  3),  47  U.  S.  C.    1007(  c)(  3)  (no 
 court  may  issue  a  CALEA  enforcement  order  requiring  a  carrier  to  make  modifications  to  pre-  1995  equipment  or  facilities  unless  the  federal  government  has  agreed  to  pay  for  any  such  modifications). 


 154  Section  109(  b)(  1)  of  CALEA,  47  U.  S.  C.    1008(  b)(  1). 
 155  Section  109(  b)(  2)(  A)  of  CALEA,  47  U.  S.  C.    1008(  b)(  2)(  A). 
 156  47  U.  S.  C.    1008(  b).  Commenters  opposing  this  conclusion,  see,  e.  g.,  CTIA  Comments  at  13-  14;  Nextel 
 Comments  at  4;  RTG  Comments  at  8;  SBC  Comments  at  27-  28,  provide  no  convincing  arguments  to  overcome  the  clear  bifurcation  of  cost  responsibilities  set  forth  in  CALEA  section  109. 


 157  Notice,  19  FCC  Rcd  at  15739,  para.  132  (citing  Order  on  Remand,  17  FCC  Rcd  at  6917,  para.  60). 
 158  Id. 
 159  Except  as  provided  in  subsections  .  .  .  109(  b)  .  .  .  ,  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  [providing  the  capabilities  required  by  CALEA].  CALEA  section  103(  a),  47 


 U.  S.  C.    1002(  a).  160 
 47  U.  S.  C.    1008.  161 
 DOJ  Reply  Comments  at  66. 
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 authority  to  recover  through  intercept  charges  the  costs  associated  with  carrying  out  an  intercept  that  is  accomplished  using  a  CALEA-  based  intercept  solution,  162  they  are  prohibited  by  CALEA  from  recovering 
 through  intercept  charges  the  costs  of  making  modifications  to  equipment,  facilities,  or  services  pursuant  to  the  assistance  capability  requirements  of  CALEA  section  103  and  the  costs  of  developing,  installing, 
 and  deploying  CALEA-  based  intercept  solutions  that  comply  with  the  assistance  capability  requirements  of  CALEA  section  103.  163 


 72.  To  the  extent  carriers  do  not  meet  the  necessary  criteria  for  obtaining  cost  recovery  pursuant  to  section  109(  b)  of  CALEA,  164  carriers  may  absorb  the  costs  of  CALEA  compliance  as  a 
 necessary  cost  of  doing  business,  or,  where  appropriate,  recover  some  portion  of  their  CALEA  section  103  implementation  costs  from  their  subscribers.  165  The  specific  provision  allowing  carriers  to  recover 
 some  portion  of  their  CALEA  capital  costs  from  their  subscribers  also  reinforces  our  conclusion  that  carriers  may  not  recover  such  costs  from  law  enforcement  through  intercept  charges.  To  the  extent  that 
 carriers  are  not  able  to  recover  their  CALEA  capital  costs  from  the  federal  government  through  section  109,  Congress  provided  only  one  other  avenue  for  carriers  to  recover  such  costs,  and  that  is  from 
 subscribers,  not  law  enforcement.  Such  recovery  from  consumers,  of  course,  will  vary  among  telecommunications  carriers  subject  to  CALEA  depending  on  certain  factors.  Rate-  regulated  carriers 
 (e.  g.,  incumbent  local  exchange  carriers)  cannot  raise  rates  without  first  obtaining  authorization  to  do  so.  Other  carriers  (e.  g.,  Commercial  Mobile  Radio  Services  (CMRS)  providers)  can  recover  their  costs  from 
 subscribers  on  a  competitive  market  basis.  166  Given  this  backdrop,  in  the  Notice,  we  invited  comment  on  whether  a  national  surcharge  scheme  is  feasible  for  carriers  in  their  efforts  to  meet  CALEA 
 requirements.  167  We  also  sought  comment  on  whether  the  Commission  would  need  to  undertake  a 


 162  See,  e.  g.,  18  U.  S.  C.    2518(  4). 
 163  While  some  commenters  point  to  18  U.  S.  C.    2518(  4)  as  support  for  the  proposition  that  carriers  may  recover 
 CALEA  capital  costs  from  law  enforcement  through  intercept  charges,  see,  e.  g.,  CTIA  Comments  at  28;  Corr  Comments  at  10;  Global  Crossing  Comments  at  16;  SBC  Comments  at  26;  we  disagree.  Indeed,  we  believe  that  it  is 


 significant  that  when  CALEA  was  passed,  Congress  provided  specified  cost  recovery  mechanisms  for  CALEA  capital  costs  in  CALEA  section  109  and  section  229  of  the  Communications  Act  but  chose  not  to  amend  the  portion 
 of  18  U.  S.  C.    2518(  4)  addressing  intercept  charges  (even  though  Congress  amended  other  provisions  of  Title  III  in  CALEA).  This  strongly  suggests  that  Congress  did  not  intend  for  the  additional  compliance  costs  associated  with 
 CALEA  to  be  recovered  through  intercept  charges  authorized  by  18  U.  S.  C.  2518(  4)  but  rather  by  those  mechanisms  set  forth  in  CALEA  itself. 
 164  See  supra  Section  III.  B.  2  for  a  discussion  of  the  criteria  to  be  met  by  carriers  seeking  cost  recovery  pursuant  to 
 section  109(  b)(  1)  of  CALEA,  47  U.  S.  C.    1008(  b)(  1).  165 
 See  47  U.  S.  C.    229(  e)  (authorizing  common  carriers  to  petition  the  Commission  to  adjust  charges,  practices,  classifications,  and  regulations  to  recover  costs  expended  for  making  modifications  to  equipment,  facilities,  or 


 services  pursuant  to  the  requirements  of  section  103  of  CALEA).  166 
 See  47  U.  S.  C.    332(  c)(  3)  (preempting  the  states  from  any  rate  regulation  of  CMRS  providers).  See  Notice,  19  FCC  Rcd  at  15738,  para.  128.  While  some  commenters  expressed  concern  about  the  ability  of  small  carriers  in 


 particular  to  recover  a  significant  portion  of  their  CALEA  from  subscribers,  commenters  uniformly  agreed  that  carriers  not  subject  to  rate  regulation  are  free  to  recover  all  or  part  of  their  CALEA  costs  by  passing  them  on  to  their 
 subscribers  on  a  competitive  market  basis.  See,  e.  g.,  DOJ  Comments  at  85-  87,  Global  Crossing  Comments  at  16,  SBC  Comments  at  29. 
 167  Notice,  19  FCC  Rcd  at  15738,  para.  129. 
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 specific  forbearance  analysis  under  section  10  of  the  Communications  Act,  and  whether  states  may  expressly  provide  for  or  preclude  the  recovery  of  CALEA  compliance  costs.  168 
 73.  We  decline  to  adopt  a  national  surcharge  to  recover  CALEA  costs.  We  find  that  it  would  not  serve  the  public  interest  to  use  a  national  surcharge  scheme  or  to  implement  some  form  of  cost 
 pooling  system,  as  some  commenters  suggest,  169  because  such  a  scheme  would  increase  the  administrative  burden  placed  upon  the  carriers  and  provide  little  incentive  for  carriers  to  minimize  their  costs.  We 
 therefore  decline  to  mandate  a  surcharge  or  other  specific  method  of  CALEA  cost  recovery.  We  find  that  carriers  that  are  not  subject  to  rate  regulation  may  choose  to  recover  their  CALEA-  related  costs  from  their 
 subscribers  through  any  lawful  manner  consistent  with  their  obligations  under  the  Communications  Act.  170  Section  229(  e)  of  the  Communications  Act  allows  rate-  regulated  common  carriers  to  seek  to 
 recover  their  federally-  allocated  CALEA  section  103  costs  from  subscribers.  171  As  noted  above,  the  Joint  Board  has  not  yet  provided  its  recommendation  as  to  the  allocation  of  CALEA  costs  between  the  federal 
 and  state  jurisdictions.  After  the  Joint  Board  issues  its  recommendation,  and  to  the  extent  that  CALEA  costs  ultimately  are  allocated  to  the  federal  jurisdiction,  rate-  regulated  carriers  subject  to  the 
 Commissions  price  cap  rules  have  the  ability  to  seek  exogenous  treatment  of  the  federally-  allocated  CALEA  costs.  172  Carriers  subject  to  the  Commissions  rate-  of-  return  rules  have  the  ability  to  propose  rate 
 changes  that  would  seek  recovery  of  any  federally-  allocated  CALEA  costs  not  already  recovered  in  rates.  173 


 74.  Commenters  to  the  Notice  also  argue  that  carriers  with  smaller  subscriber  bases  are  less  able  to  bear  the  costs  of  CALEA  implementation.  174  To  the  extent  CALEA  costs  prohibit  these  carriers 
 from  reasonably  achieving  CALEA  compliance,  CALEA  section  109(  b)  provides  a  remedy.  175  The  carriers  can  seek  a  determination  from  the  Commission  that  CALEA  compliance  is  not  reasonably 
 achievable,  and,  upon  such  a  determination,  the  Attorney  General  may  agree  to  pay  the  costs  of  compliance  for  these  carriers,  or  the  carriers  will  be  deemed  to  be  in  compliance.  176 


 168  Id.  at  15738,  para.  130;  47  U.  S.  C.    160,  332.  Because  we  are  not  adopting  cost  recovery  rules  governing  the 
 recovery  of  CALEA  costs  from  subscribers,  we  do  not  need  to  address  whether  analyses  under  sections  160  or  332  are  warranted  here. 


 169  See  RCA  Comments  at  2;  United  Utilities  Reply  Comments  at  7. 
 170  We  note  that  this  approach  is  consistent  with  the  recovery  of  other  costs,  including  those  for  universal  service 
 and  local  number  portability,  incurred  by  carriers  that  are  not  subject  to  rate  regulation.  See  Truth-  in-  Billing  and  Billing  Format,  CC  Docket  No.  98-  170  and  CG  Docket  No.  04-  208,  Second  Report  and  Order,  Declaratory  Ruling, 


 and  Second  Further  Notice  of  Proposed  Rulemaking,  20  FCC  Rcd  6448,  6462,  para.  28  (2005);  Telephone  Number  Portability,  CC  Docket  No.  95-  116,  Third  Report  and  Order,  13  FCC  Rcd  11701,  11774,  para.  136  (1998). 
 171  47  U.  S.  C.    229(  e). 
 172  47  C.  F.  R.    61.45(  d). 
 173  47  C.  F.  R.    61.38  and  61.39. 
 174  RTG  Comments  at  7;  United  Utilities  Reply  Comments  at  4. 
 175  47  U.  S.  C.    1008(  b). 
 176  47  U.  S.  C.    1008(  b)(  2). 
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 E.  SYSTEM  SECURITY  REQUIREMENTS 
 75.  In  the  First  R&  O,  we  concluded  that  providers  of  facilities-  based  broadband  Internet  access  service  and  interconnected  VoIP  service  newly  identified  as  subject  to  CALEA  under  the  SRP  are 


 to  comply  with  the  assistance  capability  requirements  in  section  103  of  CALEA  within  18  months  of  the 
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 effective  date  of  the  First  R&  O.  177  In  this  Second  R&  O,  we  determine  that  these  newly  identified  carriers  must  comply  with  the  system  security  requirements  in  section  105  of  CALEA  and  section  229(  b)  of  the 
 Communications  Act,  as  codified  in  the  Commissions  rules,  178  within  90  days  of  the  effective  date  of  this  Second  R&  O.  179 


 76.  We  find  that,  based  on  the  record,  90  days  is  a  reasonable  time  period  to  expect  providers  of  facilities-  based  broadband  Internet  access  service  and  interconnected  VoIP  service  to  comply  with  the 
 Section  105  and  229(  b)  system  security  requirements,  as  codified  in  the  Commissions  rules.  180  Thus,  we  require  these  carriers  to  file  with  the  Commission  within  90  days  of  the  effective  date  of  this  Second  R&  O 
 the  policies  and  procedures  they  use  to  comply  with  the  system  security  requirements  as  codified  in  our  rules.  Ninety  days  is  the  same  amount  of  time  provided  by  the  Commission  when  it  initially  adopted 
 these  requirements.  181  Timely  compliance  with  these  requirements  will  assist  LEAs  and  the  Commission  in  identifying  those  entities  now  subject  to  CALEA,  provide  important  contact  information  for 
 Commission  follow-  up  on  CALEA  compliance,  and,  more  importantly  for  LEAs,  ensure  that  providers  of  facilities-  based  broadband  Internet  access  service  and  interconnected  VoIP  service  are  adequately 
 prepared  for  assisting  LEAs  in  conducting  lawful  electronic  surveillance. 
 F.  FUTURE  SERVICES  AND  TECHNOLOGIES 
 77.  In  the  Notice,  the  Commission  tentatively  concluded  that  it  is  unnecessary  to  adopt  Law  Enforcements  proposal  regarding  the  Commission  identifying  future  services  and  entities  subject  to 


 CALEA.  182  We  recognized  Law  Enforcements  need  for  more  certainty  regarding  the  applicability  of  CALEA  to  new  services  and  technologies,  but  expressed  concerned  that  Law  Enforcements  proposed 
 approach  could  be  inconsistent  with  CALEAs  statutory  intent  and  could  create  an  obstacle  to  innovation.  183  We  noted  that  the  requirements  of  the  statute  and  its  legislative  history  seem  to  support 
 opponents  arguments  that  Congress  did  not  intend  that  manufacturers  or  service  providers  would  be  required  to  obtain  advance  clearance  from  the  government  before  deploying  a  technology  or  service  that 
 is  not  subject  to  CALEA.  We  also  expressed  concern  that,  as  a  practical  matter,  providers  will  be  reluctant  to  develop  and  deploy  innovative  services  and  technologies  if  they  must  build  in  CALEA  capabilities  to 


 177  First  R&  O,  20  FCC  Rcd  at  14990,  para.  3. 
 178  The  Commission  adopted  system  security  requirements  for  telecommunications  carriers  in  1999.  See  also  47 
 C.  F.  R.    64.2100-  64.2106.  The  Commissions  rules  provide  guidance  to  carriers  on  policies  and  procedures  for  employee  supervision  and  control,  as  well  as  maintaining  secure  and  accurate  records,  when  responding  to  an 


 appropriate  legal  authorization  for  electronic  surveillance.  Each  carrier  is  required  to  file  with  the  Commission  the  current  policies  and  procedures  it  uses  to  comply  with  these  requirements,  which  are  subject  to  Commission  review 
 and  enforcement.  179 
 Other  carriers  were  subject  to  CALEA  prior  to  the  First  Report  and  Order  in  this  proceeding.  180 
 Most  commenters  did  not  address  compliance  dates  for  system  security  requirements,  although  a  few  noted  that  complying  with  some  of  these  obligations  may  be  difficult  for  some  small  entities  to  meet  and  for  those  who  have 


 never  assisted  with  an  order  for  electronic  surveillance;  e.  g.,  see  SIA  Comments  at  17-  18.  We  note  that  trusted  third  parties  and  service  bureaus  can  assist  carriers  in  processing  surveillance  orders  in  accordance  with  the  system 
 security  requirements,  thereby  ameliorating  the  burden  for  some  carriers.  181 
 47  C.  F.  R    64.2105.  182 
 Notice,  19  FCC  Rcd  at  15710,  para.  60.  183 
 Id.  19  FCC  Rcd  at  15710-  11,  paras.  60-  61. 
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 equipment  that  ultimately  may  not  be  subject  to  CALEA  or  wait  for  a  ruling  on  the  statutes  application  to  the  new  service  or  technology.  184 
 78.  Discussion.  In  its  comments  to  the  Notice,  DOJ  argues  that  the  Commission  should  adopt  procedures  to  determine  whether  future  services  and  entities  are  subject  to  CALEA.  DOJ  contends  that  it 
 would  be  helpful  for  industry  and  LEAs  to  be  able  to  seek  rulings  from  the  Commission  regarding  CALEAs  applicability  to  a  new  service  in  advance  of  that  services  introduction  into  the  marketplace. 
 DOJ  concludes  that  the  Commission  should  require  or  strongly  encourage  all  providers  of  interstate  wire  or  electronic  communications  services  that  have  any  question  about  whether  they  are  subject  to  CALEA 
 to  seek  Commission  guidance  at  the  earliest  possible  date,  well  before  deployment  of  the  service  in  question.  185 


 79.  Other  commenters  support  the  tentative  conclusion  set  forth  in  the  Notice,  contending  that  the  public  interest  in  innovation  is  not  served  by  government  design  mandates  imposed  upon 
 manufacturers  and  telecommunications  carriers.  186  Verizon  states  that,  while  it  supports  the  availability  of  an  optional  expedited  declaratory  ruling  procedure  for  carriers  that  are  unsure  of  their  CALEA 
 obligations,  DOJs  proposed  procedures  and  related  requirements  would  effectively  force  carriers  to  obtain  pre-  authorization  of  new  services  and  would  contradict  Congresss  intent  expressed  in  CALEAs 
 legislative  history,  which  makes  clear  that  CALEA  should  be  implemented  in  a  way  that  does  not  impede  the  introduction  of  new  technologies,  features,  and  services.  187 


 80.  We  agree  with  Verizon  and  other  commenters  that  it  would  be  inconsistent  with  the  legislative  history  of  CALEA  and  inappropriate  as  a  matter  of  policy  for  the  Commission  to  identify 
 future  services  and  entities  that  may  be  subject  to  CALEA.  188  While  we  are  sympathetic  to  DOJs  goal  of  establishing  greater  certainty  regarding  the  applicability  of  CALEA  to  new  services  and  technologies,  we 
 find  that  implementing  DOJs  proposal  would  have  a  chilling  effect  on  innovation.  We  believe  that  we  can  best  determine  the  future  services  and  entities  that  are  subject  to  CALEA  on  a  case-  by-  case  basis. 
 However,  we  concur  with  Verizon  that  an  optional  expedited  declaratory  ruling  procedure  for  entities  that  are  unsure  of  their  CALEA  obligations  with  regard  to  new  services  would  be  useful.  Accordingly, 
 telecommunications  carriers  and  manufacturers,  as  well  as  LEAs,  may  petition  the  Commission  for  a  declaratory  ruling  as  to  CALEA  obligations  with  regard  to  new  equipment,  facilities  and  services. 


 G.  CONSOLIDATION  OF  CALEA  RULES 
 81.  We  are  taking  this  opportunity  to  consolidate  our  CALEA  rules  into  Part  1.  Currently,  those  rules  are  contained  in  three  different  Parts  of  the  Commissions  rules:  Part  22,  titled  Public  Mobile 


 Services;  Part  24,  titled  Personal  Communications  Services;  and  Part  64,  titled  Miscellaneous  Rules  Related  to  Common  Carriers.  CALEA  rules  for  Parts  22  and  24  are  each  contained  in  a  Subpart  J,  titled 
 Required  New  Capabilities  Pursuant  to  the  Communications  Assistance  for  Law  Enforcement  Act 


 184  Id.  19  FCC  Rcd  at  15711,  para.  61. 
 185  DOJ  Comments  at  36-  38. 
 186  EFF  Reply  Comments  at  3;  US  ISPA  Comments  at  14-  15. 
 187  Verizon  Reply  Comments  at  14. 
 188  But  see  discussion  at  para.  32,  supra  (carriers  should  incorporate  a  CALEA  compliance  plan  into  new  facilities 
 deployments). 
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 (CALEA).  Each  respective  Subpart  sets  forth  the  CALEA  capabilities  that  must  be  provided  by  cellular  and  Personal  Communications  Services  (PCS)  telecommunications  carriers.  CALEA  rules  for  Part  64  are 
 contained  both  in  Subpart  V,  titled  Telecommunication  Carrier  System  Security  and  Integrity  Pursuant  to  the  Communications  Assistance  for  Law  Enforcement  Act  (CALEA);  and  in  Subpart  W,  titled 
 Required  New  Capabilities  Pursuant  to  the  Communications  Assistance  for  Law  Enforcement  Act  (CALEA).  Subpart  V  of  Part  64  sets  forth  the  CALEA  systems  security  and  integrity  rules  for  all 
 telecommunications  carriers,  while  Subpart  W  of  Part  64  sets  forth  the  CALEA  capabilities  that  must  be  provided  by  wireline  telecommunications  carriers. 


 82.  Our  current  CALEA  rules  structure  is  somewhat  confusing  because  capability  requirements  are  contained  in  three  different  Parts,  while  systems  security  and  integrity  requirements  are 
 contained  in  only  one  Part.  Further,  the  capability  requirements  for  cellular,  PCS,  and  wireline  telecommunications  carriers  specified  in  different  Parts  are  identical,  with  the  only  differences  in 
 language  being  the  specific  references  to  the  three  different  types  of  carriers.  Moreover,  as  discussed  in  paragraph  68,  supra,  we  are  herein  codifying  the  statutory  requirement  that  all  carriers  subject  to  CALEA 
 must  comply  with  the  assistance  capability  requirements  of  section  103.  While  we  could  codify  this  requirement  in  Part  64,  that  Part  pertains  to  telecommunications  carriers  under  the  Communications 
 Act,  rather  than  the  broader  application  of  that  term  under  CALEA.  189  We  therefore  find  it  more  logical  to  codify  this  requirement  and  consolidate  our  existing  CALEA  rules  in  Part  1,  which  is  titled  Practice 
 and  Procedure,  and  contains  rules  that  apply  more  broadly  to  various  services  within  the  Commissions  jurisdiction.  Accordingly,  we  are  establishing  new  Subpart  Z  of  Part  1,  titling  it  Communications 
 Assistance  for  Law  Enforcement  Act,  and  are  deleting  Part  22,  Subpart  J;  Part  24,  Subpart  J;  Part  64,  Subpart  V;  and  Part  64,  Subpart  W.  Part  1,  Subpart  Z  specifies  that  all  carriers  subject  to  CALEA  must 
 comply  with  both  the  assistance  capability  requirements  of  CALEA  section  103  and  the  systems  security  and  integrity  requirements  of  CALEA  section  105,  and  also  lists  the  specific  capability  requirements 
 pertaining  to  cellular,  PCS,  and  wireline  carriers  that  are  currently  set  forth  in  Parts  22,  24,  and  64.  These  rule  changes  are  specified  in  Appendix  B,  infra. 


 H.  MISCELLANEOUS 
 83.  We  recognize  that  certain  questions  raised  by  the  outstanding  Further  Notice  of  Proposed  Rulemaking  in  this  docket  remain  unresolved.  190  We  intend  to  address  these  matters  expeditiously  in  a 


 future  order.  In  addition,  we  recognize  that  parties  may  also  seek  clarification  of  our  rules  and  regulations.  Our  rules  and  precedent  provide  us  with  authority  to  issue  such  clarifications,  amendments, 
 suspensions,  or  waivers  both  in  response  to  petitions  or  on  our  own  motion.  191 


 189  First  R&  O,  20  FCC  Rcd  at  14993,  para.  10. 
 190  See,  e.  g.,  Further  Notice  of  Proposed  Rulemaking,  20  FCC  Rcd  at  15013,  para.  49  &  n.  142  (seeking  comment 
 on  the  appropriateness  of  requiring  something  less  than  full  CALEA  compliance  for  certain  classes  or  categories  of  providers,  such  as  small  broadband  access  providers  in  rural  areas,  and  private  broadband  networks  used  by 


 schools,  libraries,  and  research  institutions.  191 
 See  47  C.  F.  R.    1.2-  3. 
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 IV.  PROCEDURAL  ISSUES 
 1.  Ex  Parte  Rules 
 84.  This  rulemaking  shall  be  treated  as  a  permit-  but-  disclose  proceeding  in  accordance  with  the  Commissions  ex  parte  rules.  192  Persons  making  oral  ex  parte  presentations  are  reminded  that 


 memoranda  summarizing  the  presentations  must  contain  summaries  of  the  substance  of  the  presentations  and  not  merely  a  listing  of  the  subjects  discussed.  More  than  a  one  or  two  sentence  description  of  the 
 views  and  arguments  presented  is  generally  required.  193  Other  requirements  pertaining  to  oral  and  written  presentations  are  set  forth  in  section  1.1206(  b)  of  the  Commissions  rules. 


 85.  Documents  in  ET  Docket  No.  04-  295  are  available  for  public  inspection  and  copying  during  business  hours  at  the  FCC  Reference  Information  Center,  Portals  II,  445  12th  St.  SW,  Room  CY-A257, 
 Washington,  DC  20554.  The  documents  may  also  be  purchased  from  BCPI,  telephone  (202)  488-  5300,  facsimile  (202)  488-  5563,  TTY  (202)  488-  5562,  e-  mail  fcc@  bcpiweb.  com. 


 2.  Accessible  Formats 
 86.  To  request  materials  in  accessible  formats  for  people  with  disabilities  (Braille,  large  print,  electronic  files,  audio  format),  send  an  e-  mail  to  fcc504@  fcc.  gov  or  call  the  Consumer  &  Governmental 


 Affairs  Bureau  at  (202)  418-  0531  (voice),  (202)  418-  7365  (TTY). 
 3.  Regulatory  Flexibility  Analysis 
 87.  As  required  by  the  Regulatory  Flexibility  Act,  see  5  U.  S.  C.    603,  the  Commission  has  prepared  a  Final  Regulatory  Flexibility  Analysis  (FRFA)  of  the  possible  significant  economic  impact  on 


 small  entities  of  the  policies  and  rules  addressed  in  the  Second  R&  O.  The  FRFA  is  set  forth  in  Appendix  C. 


 4.  Paperwork  Reduction  Analysis 
 88.  Final  Paperwork  Reduction  Analysis.  The  Second  R&  O  contains  new  information  collection  requirements  subject  to  the  Paperwork  Reduction  Act  of  1995  (PRA),  Public  Law  104-  13.  It 


 will  be  submitted  to  the  Office  of  Management  and  Budget  (OMB)  for  review  under  Section  3507(  d)  of  the  PRA.  OMB,  the  general  public,  and  other  Federal  agencies  are  invited  to  comment  on  the  new  or 
 modified  information  collection  requirements  contained  in  this  proceeding. 
 V.  ORDERING  CLAUSES 
 89.  Accordingly,  IT  IS  ORDERED  that  that  pursuant  to  sections  1,  4(  i),  7(  a),  229,  301,  303,  332,  and  410  of  the  Communications  Act  of  1934,  as  amended,  and  section  102  of  the  Communications 


 Assistance  for  Law  Enforcement  Act,  18  U.  S.  C.    1001,  the  Second  Report  and  Order  and  Memorandum  Opinion  and  Order  in  ET  Docket  No.  04-  295  IS  ADOPTED. 


 192  47  C.  F.  R.    1.200  et  seq. 
 193  47  C.  F.  R.    1.1206(  b)(  2). 
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 90.  IT  IS  FURTHER  ORDERED  that  Parts  1,  22,  24,  and  64  of  the  Commissions  Rules,  47  C.  F.  R.  Parts  1,  22,  24,  and  64,  are  amended  as  set  forth  in  Appendix  B.  The  requirements  of  the  Second 
 Report  and  Order  shall  become  effective  30  days  after  publication  in  the  Federal  Register.  This  Second  Report  and  Order  contains  information  collection  requirements  subject  to  the  Paperwork  Reduction  Act 
 of  1995  (PRA),  Public  Law  104-  13,  that  are  not  effective  until  approved  by  the  Office  of  Management  and  Budget.  The  Federal  Communications  Commission  will  publish  a  document  in  the  Federal  Register 
 by  the  OMB  announcing  the  effective  date  of  those  rules. 
 91.  IT  IS  FURTHER  ORDERED  that  the  Petition  for  Reconsideration  and  for  Clarification  of  the  CALEA  Applicability  Order  filed  by  the  United  States  Telecom  Association  is  granted  to  the 


 extent  indicated  herein  and  is  denied  in  all  other  respects. 
 92.  IT  IS  FURTHER  ORDERED  that  the  Commissions  Consumer  and  Governmental  Affairs  Bureau,  Reference  Information  Center,  SHALL  SEND  a  copy  of  this  Second  Report  and  Order 


 and  Memorandum  Opinion  and  Order,  including  the  Final  Regulatory  Flexibility  Analysis,  to  the  Chief  Counsel  for  Advocacy  of  the  Small  Business  Administration. 


 FEDERAL  COMMUNICATIONS  COMMISSION 


 Marlene  H.  Dortch  Secretary 
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 APPENDIX  A  LIST  OF  COMMENTERS 
 Comments  to  Notice  in  ET  Docket  No.  04-  295: 
 Comments  Abbreviation  AMA  TechTel  Communications,  LLC  AMA  TechTel 
 American  Civil  Liberties  Union  ACLU  BellSouth  Corporation  BellSouth 
 Cellular  Telecommunications  &  Internet  Association  CTIA 
 Cingular  Wireless  LLC  Cingular  Coalition  for  Reasonable  Rural  Broadband 
 CALEA  Compliance  CRRBCC  Corr  Wireless  Communications,  L.  L.  C  Corr 
 EarthLink,  Inc.  EarthLink  EDUCAUSE  Coalition  EDUCAUSE 
 Electronic  Frontier  Foundation  EFF  European  Telecommunications  Standards  Institute  ETSI 
 Fiducianet,  Inc.  Fiducianet  Global  Crossing  North  America,  Inc.  Global  Crossing 
 GVNW  Consulting,  Inc.  GVNW  Industry  and  Public  Interest  Joint  Commenters  I&  P 
 Level  3  Communications,  LLC  Level  3  MaineStreet  Communications,  Inc.  MaineStreet 
 Motorola,  Inc.  Motorola  National  Cable  &  Telecommunications 
 Association  NCTA  National  Telecommunications  Cooperative 
 Association  NTCA  New  York  Attorney  General  Eliot  Spitzer  NYAG 
 Nextel  Communications,  Inc.  Nextel  Nuvio  Corporation  Nuvio 
 Organization  for  the  Promotion  and  Advancement  of  Small  Telecommunications  Companies  OPASTCO 
 Rural  Cellular  Association  RCA  Rural  Telecommunications  Group,  Inc.  RTG 
 Rural  Telecommunications  Providers  RTP  Satellite  Industry  Association  SIA 
 SBC  Communications  Inc.  SBC  Smithville  Telephone  Company  STC 
 Subsentio,  Inc.  Subsentio  Telcom  Consulting  Associates,  Inc.  TCA 
 Telecommunications  Industry  Association  TIA  T-  Mobile  USA,  Inc.  T-  Mobile 
 Texas  Department  of  Public  Safety  Texas  DPS  United  States  Department  of  Justice  DOJ 
 United  States  Internet  Service  Provider  Association  US  ISPA 
 United  States  Telecom  Association  USTelecom 
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 VeriSign,  Inc.  VeriSign  Verizon  Verizon 
 Vonage  Holdings  Corp.  Vonage  Yahoo!  Inc.  Yahoo! 


 Reply  Comments  to  Notice  in  ET  Docket  No.  04-  295: 
 Replies  Abbreviation  BellSouth  Corporation  BellSouth 
 Cellular  Telecommunications  &  Internet  Association  CTIA 
 EarthLink,  Inc.  EarthLink  Electronic  Frontier  Foundation  EFF 
 Fiducianet,  Inc.  Fiducianet  Global  Crossing  North  America,  Inc.  Global  Crossing 
 Industry  and  Public  Interest  Joint  Commenters  I&  P  Level  3  Communications,  LLC  Level  3 
 MetroPCS  Communications,  Inc.  MetroPCS  National  Cable  &  Telecommunications 
 Association  NCTA  National  Telecommunications  Cooperative 
 Association  NTCA  Nextel  Communications,  Inc.  Nextel 
 Rural  Iowa  Independent  Telephone  Association  RIITA  Satellite  Industry  Association  SIA 
 SBC  Communications  Inc.  SBC  Southern  LINC  Southern  LINC 
 Sprint  Corporation  Sprint  Telecommunications  Industry  Association  TIA 
 T-  Mobile  USA,  Inc.  T-  Mobile  United  Power  Line  Council  UPLC 
 United  States  Cellular  Corporation  USCC  United  States  Department  of  Justice  DOJ 
 United  States  Internet  Service  Provider  Association  US  ISPA 
 Office  of  Advocacy,  United  States  Small  Business  Administration  Advocacy 
 United  States  Telecom  Association  USTA  United  Utilities,  Inc.,  et  al.  United  Utilities 
 Verint  Systems,  Inc.  Verint  VeriSign,  Inc.  VeriSign 
 Verizon  Verizon  Vonage  Holdings  Corp.  Vonage 
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 Comments/  Oppositions  to  United  States  Telecom  Associations  Petition  for  Reconsideration  and  Clarification  in  ET  Docket  No.  04-  295 
 Oppositions  and  Comments  Abbreviation 
 8x8,  Inc.,  Acorn  Active  Media,  American  Library  Association,  Association  for  Community  Networking, 


 Association  of  College  and  Research  Libraries,  Association  of  Research  Libraries,  Center  for  Democracy  &  Technology, 
 Champaign  Urbana  Community  Wireless  Network,  Electronic  Frontier  Foundation,  Information  Technology 
 Association  of  America,  Texas  Internet  Service  Providers  Association,  Voice  on  the  Net  (VON)  Coalition 


 8x8 


 American  Civil  Liberties  Union  ACLU 
 CTIA    The  Wireless  Association  CTIA 
 Global  Crossing  North  America,  Inc.  Global  Crossing 
 National  Telecommunications  Cooperative  Association  and  the  Organization  for  the  Promotion  and  Advancement  of 


 Small  Telecommunications  Companies 
 NTCA/  OPASTCO 


 Satellite  Industry  Association  SIA 
 Telecommunications  Industry  Association  TIA 
 United  States  Department  of  Justice  DOJ 
 VeriSign,  Inc.  VeriSign 


 Replies  to  Comments/  Oppositions  to  United  States  Telecom  Associations  Petition  for  Reconsideration  and  Clarification  in  ET  Docket  No.  04-  295 


 Replies  Abbreviation 
 American  Library  Association,  Association  of  Research  Libraries,  Association  of  College  and  Research  Libraries  ALA 


 United  States  Telecom  Association  USTelecom 
 Computer  &  Communications  Industry  Association,  Information  Technology  Association  of  America,  Acorn 


 Active  Media,  Association  for  Community  Networking,  Center  for  Democracy  &  Technology,  Center  for  Financial 
 Privacy  and  Human  Rights,  Champaign  Urbana  Community  Wireless  Network,  Electronic  Frontier  Foundation,  Texas 
 Internet  Service  Providers  Association 


 CCIA 


 Information  Technology  Industry  Council  ITI 
 United  Power  Line  Council  UPLC 
 US  LEC  Acquisition  Co.  US  LEC 
 VeriSign,  Inc.  VeriSign 
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 APPENDIX  B  FINAL  RULES 
 For  the  reasons  discussed  in  the  preamble,  the  Federal  Communications  Commission  amends  47  CFR  Parts  1,  22,  24,  and  64  as  follows: 
 A.  Part  1  of  the  Code  of  Federal  Regulations  is  amended  as  follows: 
 PART  1-  PRACTICE  AND  PROCEDURE 
 1.  The  authority  for  Part  1  continues  to  read  as  follows: 
 Authority:  15  U.  S.  C.  79  et  seq.;  47  U.  S.  C.  151,  154(  i),  154(  j),  155,  157,  225,  and  303(  r). 
 2.  Subpart  Z  is  added  to  read  as  follows: 
 Subpart  Z    Communications  Assistance  for  Law  Enforcement  Act 
 1.20000  Purpose.  1.20001  Scope. 
 1.20002  Definitions.  1.20003  Policies  and  procedures  for  employee  supervision  and  control. 
 1.20004  Maintaining  secure  and  accurate  records.  1.20005  Submission  of  policies  and  procedures  and  Commission  review. 
 1.20006  Assistance  capability  requirements.  1.20007  Additional  assistance  capability  requirements  for  wireline,  cellular,  and  PCS 
 telecommunications  carriers. 
   1.20000  Purpose. 
 Pursuant  to  the  Communications  Assistance  for  Law  Enforcement  Act  (CALEA),  Public  Law  103-  414,  108  Stat.  4279  (1994)  (codified  as  amended  in  sections  of  18  U.  S.  C.  and  47  U.  S.  C.),  this  subpart  contains 
 rules  that  require  a  telecommunications  carrier  to:  (a)  ensure  that  any  interception  of  communications  or  access  to  call-  identifying  information  effected 
 within  its  switching  premises  can  be  activated  only  in  accordance  with  appropriate  legal  authorization,  appropriate  carrier  authorization,  and  with  the  affirmative  intervention  of  an  individual  officer  or 
 employee  of  the  carrier  acting  in  accordance  with  regulations  prescribed  by  the  Commission;  and  (b)  implement  the  assistance  capability  requirements  of  CALEA  section  103,  47  U.  S.  C.    1002,  to 
 ensure  law  enforcement  access  to  authorized  wire  and  electronic  communications  or  call-  identifying  information. 


   1.20001  Scope. 
 The  definitions  included  in  this  subchapter  shall  be  used  solely  for  the  purpose  of  implementing  CALEA  requirements. 


   1.20002  Definitions. 
 (a)  Appropriate  legal  authorization.  The  term  appropriate  legal  authorization  means:  (1)  A  court  order  signed  by  a  judge  or  magistrate  authorizing  or  approving  interception  of  wire  or 
 electronic  communications;  or 
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 (2)  Other  authorization,  pursuant  to  18  U.  S.  C.  2518(  7),  or  any  other  relevant  federal  or  state  statute.  (b)  Appropriate  carrier  authorization.  The  term  appropriate  carrier  authorization  means  the  policies 
 and  procedures  adopted  by  telecommunications  carriers  to  supervise  and  control  officers  and  employees  authorized  to  assist  law  enforcement  in  conducting  any  interception  of  communications  or  access  to  call-identifying 
 information.  (c)  Appropriate  authorization.  The  term  appropriate  authorization  means  both  appropriate  legal 
 authorization  and  appropriate  carrier  authorization.  (d)  LEA.  The  term  LEA  means  law  enforcement  agency;  e.  g.,  the  Federal  Bureau  of  Investigation  or  a 
 local  police  department.  (e)  Telecommunications  carrier.  The  term  telecommunications  carrier  includes: 
 (1)  A  person  or  entity  engaged  in  the  transmission  or  switching  of  wire  or  electronic  communications  as  a  common  carrier  for  hire; 
 (2)  A  person  or  entity  engaged  in  providing  commercial  mobile  service  (as  defined  in  section  332(  d)  of  the  Communications  Act  of  1934  (47  U.  S.  C.  332(  d)));  or 
 (3)  A  person  or  entity  that  the  Commission  has  found  is  engaged  in  providing  wire  or  electronic  communication  switching  or  transmission  service  such  that  the  service  is  a  replacement  for  a  substantial 
 portion  of  the  local  telephone  exchange  service  and  that  it  is  in  the  public  interest  to  deem  such  a  person  or  entity  to  be  a  telecommunications  carrier  for  purposes  of  CALEA. 


   1.20003  Policies  and  procedures  for  employee  supervision  and  control. 
 A  telecommunications  carrier  shall:  (a)  Appoint  a  senior  officer  or  employee  responsible  for  ensuring  that  any  interception  of 
 communications  or  access  to  call-  identifying  information  effected  within  its  switching  premises  can  be  activated  only  in  accordance  with  a  court  order  or  other  lawful  authorization  and  with  the  affirmative 
 intervention  of  an  individual  officer  or  employee  of  the  carrier.  (b)  Establish  policies  and  procedures  to  implement  paragraph  (a)  of  this  section,  to  include: 
 (1)  A  statement  that  carrier  personnel  must  receive  appropriate  legal  authorization  and  appropriate  carrier  authorization  before  enabling  law  enforcement  officials  and  carrier  personnel  to  implement  the 
 interception  of  communications  or  access  to  call-  identifying  information;  (2)  An  interpretation  of  the  phrase  "appropriate  authorization"  that  encompasses  the  definitions  of 
 appropriate  legal  authorization  and  appropriate  carrier  authorization,  as  used  in  paragraph  (b)(  1)  of  this  section; 
 (3)  A  detailed  description  of  how  long  it  will  maintain  its  records  of  each  interception  of  communications  or  access  to  call-  identifying  information  pursuant  to    1.20004; 
 (4)  In  a  separate  appendix  to  the  policies  and  procedures  document:  (i)  The  name  and  a  description  of  the  job  function  of  the  senior  officer  or  employee  appointed  pursuant 
 to  paragraph  (a)  of  this  section;  and  (ii)  Information  necessary  for  law  enforcement  agencies  to  contact  the  senior  officer  or  employee 
 appointed  pursuant  to  paragraph  (a)  of  this  section  or  other  CALEA  points  of  contact  on  a  seven  days  a  week,  24  hours  a  day  basis. 
 (c)  Report  to  the  affected  law  enforcement  agencies,  within  a  reasonable  time  upon  discovery:  (1)  Any  act  of  compromise  of  a  lawful  interception  of  communications  or  access  to  call-  identifying 
 information  to  unauthorized  persons  or  entities;  and  (2)  Any  act  of  unlawful  electronic  surveillance  that  occurred  on  its  premises. 


   1.20004  Maintaining  secure  and  accurate  records. 
 (a)  A  telecommunications  carrier  shall  maintain  a  secure  and  accurate  record  of  each  interception  of  communications  or  access  to  call-  identifying  information,  made  with  or  without  appropriate 
 authorization,  in  the  form  of  single  certification. 
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 (1)  This  certification  must  include,  at  a  minimum,  the  following  information:  (i)  The  telephone  number(  s)  and/  or  circuit  identification  numbers  involved; 
 (ii)  The  start  date  and  time  that  the  carrier  enables  the  interception  of  communications  or  access  to  call  identifying  information; 
 (iii)  The  identity  of  the  law  enforcement  officer  presenting  the  authorization;  (iv)  The  name  of  the  person  signing  the  appropriate  legal  authorization; 
 (v)  The  type  of  interception  of  communications  or  access  to  call-  identifying  information  (e.  g.,  pen  register,  trap  and  trace,  Title  III,  FISA);  and 
 (vi)  The  name  of  the  telecommunications  carriers'  personnel  who  is  responsible  for  overseeing  the  interception  of  communication  or  access  to  call-  identifying  information  and  who  is  acting  in  accordance 
 with  the  carriers'  policies  established  under    1.20003.  (2)  This  certification  must  be  signed  by  the  individual  who  is  responsible  for  overseeing  the 
 interception  of  communications  or  access  to  call-  identifying  information  and  who  is  acting  in  accordance  with  the  telecommunications  carrier's  policies  established  under    1.20003.  This  individual  will,  by 
 his/  her  signature,  certify  that  the  record  is  complete  and  accurate.  (3)  This  certification  must  be  compiled  either  contemporaneously  with,  or  within  a  reasonable  period  of 
 time  after  the  initiation  of  the  interception  of  the  communications  or  access  to  call-  identifying  information. 
 (4)  A  telecommunications  carrier  may  satisfy  the  obligations  of  paragraph  (a)  of  this  section  by  requiring  the  individual  who  is  responsible  for  overseeing  the  interception  of  communication  or  access  to 
 call-  identifying  information  and  who  is  acting  in  accordance  with  the  carriers'  policies  established  under    1.20003  to  sign  the  certification  and  append  the  appropriate  legal  authorization  and  any  extensions  that 
 have  been  granted.  This  form  of  certification  must  at  a  minimum  include  all  of  the  information  listed  in  paragraph  (a)  of  this  section. 
 (b)  A  telecommunications  carrier  shall  maintain  the  secure  and  accurate  records  set  forth  in  paragraph  (a)  for  a  reasonable  period  of  time  as  determined  by  the  carrier. 
 (c)  It  is  the  telecommunications  carrier's  responsibility  to  ensure  its  records  are  complete  and  accurate.  (d)  Violation  of  this  rule  is  subject  to  the  penalties  of    1.20008. 


   1.20005  Submission  of  policies  and  procedures  and  Commission  review. 
 (a)  Each  telecommunications  carrier  shall  file  with  the  Commission  the  policies  and  procedures  it  uses  to  comply  with  the  requirements  of  this  subchapter.  These  policies  and  procedures  shall  be  filed  with  the 
 Federal  Communications  Commission  within  90  days  of  the  effective  date  of  these  rules,  and  thereafter,  within  90  days  of  a  carrier's  merger  or  divestiture  or  a  carrier's  amendment  of  its  existing  policies  and 
 procedures.  (b)  The  Commission  shall  review  each  telecommunications  carrier's  policies  and  procedures  to 
 determine  whether  they  comply  with  the  requirements  of    1.20003  and    1.20004.  (1)  If,  upon  review,  the  Commission  determines  that  a  telecommunications  carrier's  policies  and 
 procedures  do  not  comply  with  the  requirements  established  under    1.20003  and    1.20004,  the  telecommunications  carrier  shall  modify  its  policies  and  procedures  in  accordance  with  an  order  released 
 by  the  Commission.  (2)  The  Commission  shall  review  and  order  modification  of  a  telecommunications  carrier's  policies  and 
 procedures  as  may  be  necessary  to  insure  compliance  by  telecommunications  carriers  with  the  requirements  of  the  regulations  prescribed  under    1.20003  and    1.20004. 


   1.20006  Assistance  capability  requirements. 
 (a)  Telecommunications  carriers  shall  provide  to  a  Law  Enforcement  Agency  the  assistance  capability  requirements  of  CALEA  regarding  wire  and  electronic  communications  and  call  identifying  information, 
 see  47  U.  S.  C.  1002.  A  carrier  may  satisfy  these  requirements  by  complying  with  publicly  available 
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 technical  requirements  or  standards  adopted  by  an  industry  association  or  standard-  setting  organization,  such  as  J-  STD-  025  (current  version),  or  by  the  Commission. 
 (b)  Telecommunications  carriers  shall  consult,  as  necessary,  in  a  timely  fashion  with  manufacturers  of  its  telecommunications  transmission  and  switching  equipment  and  its  providers  of  telecommunications 
 support  services  for  the  purpose  of  ensuring  that  current  and  planned  equipment,  facilities,  and  services  comply  with  the  assistance  capability  requirements  of  47  U.  S.  C.  1002. 
 (c)  A  manufacturer  of  telecommunications  transmission  or  switching  equipment  and  a  provider  of  telecommunications  support  service  shall,  on  a  reasonably  timely  basis  and  at  a  reasonable  charge,  make 
 available  to  the  telecommunications  carriers  using  its  equipment,  facilities,  or  services  such  features  or  modifications  as  are  necessary  to  permit  such  carriers  to  comply  with  the  assistance  capability 
 requirements  of  47  U.  S.  C.  1002. 
 1.20007  Additional  assistance  capability  requirements  for  wireline,  cellular,  and  PCS  telecommunications  carriers. 


 (a)  Definitions.  (1)  Call  identifying  information.  Call  identifying  information  means  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. 
 Call  identifying  information  is  "reasonably  available"  to  a  carrier  if  it  is  present  at  an  intercept  access  point  and  can  be  made  available  without  the  carrier  being  unduly  burdened  with  network  modifications. 
 (2)  Collection  function.  The  location  where  lawfully  authorized  intercepted  communications  and  call-identifying  information  is  collected  by  a  law  enforcement  agency  (LEA). 
 (3)  Content  of  subject-  initiated  conference  calls.  Capability  that  permits  a  LEA  to  monitor  the  content  of  conversations  by  all  parties  connected  via  a  conference  call  when  the  facilities  under  surveillance 
 maintain  a  circuit  connection  to  the  call.  (4)  Destination.  A  party  or  place  to  which  a  call  is  being  made  (e.  g.,  the  called  party). 
 (5)  Dialed  digit  extraction.  Capability  that  permits  a  LEA  to  receive  on  the  call  data  channel  a  digits  dialed  by  a  subject  after  a  call  is  connected  to  another  carrier's  service  for  processing  and  routing. 
 (6)  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). 
 (7)  IAP.  Intercept  access  point  is  a  point  within  a  carrier's  system  where  some  of  the  communications  or  call-  identifying  information  of  an  intercept  subject's  equipment,  facilities,  and  services  are  accessed. 
 (8)  In-  band  and  out-  of-  band  signaling.  Capability  that  permits  a  LEA  to  be  informed  when  a  network  message  that  provides  call  identifying  information  (e.  g.,  ringing,  busy,  call  waiting  signal,  message  light) 
 is  generated  or  sent  by  the  IAP  switch  to  a  subject  using  the  facilities  under  surveillance.  Excludes  signals  generated  by  customer  premises  equipment  when  no  network  signal  is  generated. 
 (9)  J-  STD-  025.  The  standard,  including  the  latest  version,  developed  by  the  Telecommunications  Industry  Association  (TIA)  and  the  Alliance  for  Telecommunications  Industry  Solutions  (ATIS)  for 
 wireline,  cellular,  and  broadband  PCS  carriers.  This  standard  defines  services  and  features  to  support  lawfully  authorized  electronic  surveillance,  and  specifies  interfaces  necessary  to  deliver  intercepted 
 communications  and  call-  identifying  information  to  a  LEA.  Subsequently,  TIA  and  ATIS  published  J-STD-  025-  A  and  J-  STD-  025-  B. 
 (10)  Origin.  A  party  initiating  a  call  (e.  g.,  a  calling  party),  or  a  place  from  which  a  call  is  initiated.  (11)  Party  hold,  join,  drop  on  conference  calls.  Capability  that  permits  a  LEA  to  identify  the  parties 
 to  a  conference  call  conversation  at  all  times.  (12)  Subject-  initiated  dialing  and  signaling  information.  Capability  that  permits  a  LEA  to  be 
 informed  when  a  subject  using  the  facilities  under  surveillance  uses  services  that  provide  call  identifying  information,  such  as  call  forwarding,  call  waiting,  call  hold,  and  three-  way  calling.  Excludes  signals 
 generated  by  customer  premises  equipment  when  no  network  signal  is  generated. 
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 (13)  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). 
 (14)  Timing  information.  Capability  that  permits  a  LEA  to  associate  call-  identifying  information  with  the  content  of  a  call.  A  call-  identifying  message  must  be  sent  from  the  carrier's  IAP  to  the  LEA's 
 Collection  Function  within  eight  seconds  of  receipt  of  that  message  by  the  IAP  at  least  95%  of  the  time,  and  with  the  call  event  time-  stamped  to  an  accuracy  of  at  least  200  milliseconds. 


 (b)  In  addition  to  the  requirements  in  section  1.20006,  wireline,  cellular,  and  PCS  telecommunications  carriers  shall  provide  to  a  LEA  the  assistance  capability  requirements  regarding  wire  and  electronic 
 communications  and  call  identifying  information  covered  by  J-  STD-  025  (current  version),  and,  subject  to  the  definitions  in  this  section,  may  satisfy  these  requirements  by  complying  with  J-  STD-  025  (current 
 version),  or  by  another  means  of  their  own  choosing.  These  carriers  also  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. 


   1.20008  Penalties. 
 In  the  event  of  a  telecommunications  carrier's  violation  of  this  subchapter,  the  Commission  shall  enforce  the  penalties  articulated  in  47  U.  S.  C.  503(  b)  of  the  Communications  Act  of  1934  and  47  CFR  1.8. 


 PART  22-  PUBLIC  MOBILE  SERVICES 
 1.  The  authority  for  Part  22  continues  to  read  as  follows: 
 Authority:  47  U.  S.  C.  154,  222,  303,  309,  and  332. 
 2.  Part  22,  Subpart  J,  is  amended  by  removing  Sections  22.1100-  22.1103. 
 PART  24-  PERSONAL  COMMUNICATIONS  SERVICES 
 1.  The  authority  for  Part  24  continues  to  read  as  follows: 
 Authority:  47  U.  S.  C.  154,  301,  302,  303,  309,  and  332. 
 2.  Part  24,  Subpart  J,  is  amended  by  removing  Sections  24.900-  24.903. 


 PART  64    MISCELLANEOUS  RULES  RELATING  TO  COMMON  CARRIERS 
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 1.  The  authority  for  Part  64  continues  to  read  as  follows: 
 Authority:  47  U.  S.  C.  154,  254(  K);  secs.  403(  b)(  2)(  B),  (c),  Pub.  L.  104-  104,  110  Stat.  56.  Interpret  or  apply  47  U.  S.  C.  201,  218,  222,  225,  226,  228,  and  254(  k)  unless  otherwise  noted. 


 2.  Part  64,  Subparts  V  and  W,  are  amended  by  removing  Sections  64.2100-  64.2106  and  64.2200-  2203. 
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 APPENDIX  C  REGULATORY  FLEXIBILITY  ANALYSIS 
 I.  FINAL  REGULATORY  FLEXIBILITY  ANALYSIS 
 1.  As  required  by  the  Regulatory  Flexibility  Act  of  1980,  as  amended  (RFA),  1  an  Initial  Regulatory  Flexibility  Analysis  (IRFA)  was  incorporated  in  the  Notice  of  Proposed  Rulemaking  (Notice)  in  this 
 proceeding.  2  The  Commission  sought  written  public  comment  on  the  proposals  in  the  Notice,  including  comment  on  the  IRFA.  3  The  comments  received  are  discussed  below,  except  to  the  extent  that  they  were 
 previously  addressed  in  the  Final  Regulatory  Flexibility  Analysis  (FRFA)  attached  to  the  First  Report  and  Order  (First  R&  O)  in  this  proceeding.  4  The  current  FRFA,  which  conforms  to  the  RFA,  5  pertains  only  to  the 
 Second  Report  and  Order  (Second  R&  O)  in  this  proceeding.  The  companion  Memorandum  Opinion  and  Order  (MO&  O)  does  not  adopt  rules,  but  rather,  inter  alia,  denies  a  petition  to  change  a  Commission  rule. 


 A.  Need  for,  and  Objectives  of,  the  Rules 
 2.  Advances  in  technology,  most  notably  the  introduction  of  digital  transmission  and  processing  techniques,  and  the  proliferation  of  Internet  services  such  as  broadband  access  and  Voice  over  Internet 
 Protocol  (VoIP),  have  challenged  the  ability  of  law  enforcement  agencies  (LEAs)  to  conduct  lawful  electronic  surveillance.  In  light  of  these  difficulties  and  other  outstanding  issues  associated  with  the 
 implementation  of  the  1994  Communications  Assistance  for  Law  Enforcement  Act  (CALEA),  the  Department  of  Justice,  the  Federal  Bureau  of  Investigation,  and  the  Drug  Enforcement  Administration  filed  a 
 joint  petition  for  expedited  rulemaking  in  March  2004,  asking  the  Commission  to  address  and  resolve  these  issues.  The  First  R&  O  concluded  that  CALEA  applies  to  facilities-  based  broadband  Internet  access 
 providers  and  providers  of  interconnected  VoIP  service,  and  established  a  compliance  deadline  of  May  14,  2007  for  these  providers.  6 


 3.  In  the  Second  R&  O,  we  require  that  facilities-  based  broadband  Internet  access  providers  and  providers  of  interconnected  VoIP  submit  monitoring  reports  to  ensure  their  CALEA  compliance  by  the 
 May  14,  2007  deadline  established  by  the  First  R&  O.  More  generally,  we  require  that  telecommunications  carriers  comply  with  CALEA  by  finding  that  sections  107(  c)  and  109(  b)  of  CALEA  provide  only  limited  and 
 temporary  relief  from  compliance  requirements,  and  by  finding  that  extension  of  the  compliance  deadline  for  capabilities  required  by  CALEA  section  103  is  available  only  for  facilities  and  services  deployed  prior  to 
 October  25,  1998  under  the  express  terms  of  the  statute.  We  also  conclude  that,  in  addition  to  the  enforcement  remedies  through  the  courts  available  to  LEAs  under  CALEA  section  108,  we  may  take 


 1  See  5  U.  S.  C.    603.  The  RFA,  see  5  U.  S.  C.    601-  12,  has  been  amended  by  the  Small  Business  Regulatory 
 Enforcement  Fairness  Act  of  1996  (SBREFA),  Pub.  L.  No.  104-  121,  Title  II,  110  Stat.  857  (1996).  2 
 Communications  Assistance  for  Law  Enforcement  Act  and  Broadband  Access  and  Services,  ET  Docket  No.  04-  295,  RM-  10865,  Notice  of  Proposed  Rulemaking  and  Declaratory  Ruling,  19  FCC  Rcd  15676,  15751-  60,  App.  B 


 (2004)  (Notice).  3 
 Id.  4 
 Communications  Assistance  for  Law  Enforcement  Act  and  Broadband  Access  and  Services,  First  Report  and  Order  and  Further  Notice  of  Proposed  Rulemaking,  ET  Docket  No.  04-  295,  RM-  10865,  20  FCC  Rcd  14989,  15021- 


 15036,  App.  C  (2005)  (First  R&  O).  5 
 See  5  U.  S.  C.    604.  Comments  on  small  business  issues  that  were  raised  in  response  to  the  Notice,  rather  than  to  the  IRFA  itself,  are  also  referenced  herein. 


 6  First  R&  O,  20  FCC  Rcd  at  14989-  14990,  paras.  1-  3. 
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 separate  enforcement  action  under  section  229(  a)  of  the  Communications  Act  against  carriers  that  fail  to  comply  with  CALEA.  Moreover,  we  conclude  that  carriers  must  generally  pay  for  CALEA  development  and 
 implementation  costs  incurred  after  January  1,  1995  (unless  their  costs  are  reimbursed  in  response  to  a  CALEA  section  109(  b)  petition),  but  we  acknowledge  that  they  may  recover  costs  from  other  sources,  such 
 as  from  their  subscribers. 
 B.  Summary  of  Significant  Issues  Raised  by  Public  Comments  in  Response  to  the  IRFA 
 4.  In  this  section,  we  respond  to  commenters  who  filed  directly  in  response  to  the  IRFA.  To  the  extent  we  received  comments  raising  general  small  business  concerns  during  this  proceeding,  those 
 comments  are  discussed  throughout  the  Second  R&  O.  7 
 5.  The  National  Telecommunications  Cooperative  Association  (NTCA)  and  the  Office  of  Advocacy,  U.  S.  Small  Business  Administration  (Advocacy)  filed  comments  directly  in  response  to  the 
 IRFA.  NTCA  and  Advocacy  both  generally  contend  that  the  RFA  requires  that  the  Commission  consider  less  burdensome  alternatives  appropriate  to  the  size  of  the  covered  entities.  8  These  comments  were  partially 
 addressed  in  our  previous  First  R&  O  in  this  proceeding;  9  therefore,  in  this  FRFA,  we  respond  only  to  those  arguments  that  are  relevant  to  the  Second  R&  O.  In  particular,  we  respond  to  NTCAs  argument  10  that  we 
 failed  to  include  the  availability  of  CALEA  section  107(  c)  extension  petitions  as  part  of  the  IRFA  and  to  Advocacys  arguments  11  that  the  IRFA  did  not  discuss  all  the  alternatives  available  to  small  entities, 
 including  petitions  for  extensions  under  CALEA  sections  107(  c)  and  109(  b)  and  use  of  trusted  third  parties  (TTPs). 


 6.  We  reject  NTCAs  and  Advocacys  arguments  that  the  Commission  failed  to  adequately  consider  these  issues.  While  we  recognize  that  we  did  not  specifically  list  them  in  the  IRFA,  the  IRFA 
 combined  with  the  Notice  appropriately  identified  the  ways  in  which  the  Commission  could  lessen  the  regulatory  burdens  on  small  businesses  in  compliance  with  our  RFA  obligations.  First,  we  generally 
 discussed  in  the  Notice  the  possibility  of  an  exemption  from  CALEA  compliance  for  small  businesses  that  provide  wireless  broadband  Internet  access  to  rural  areas.  12  Second,  with  regard  to  CALEA  sections  107(  c) 
 and  109(  b)  compliance  extension  petitions,  we  devoted  an  entire  section  of  the  Notice,  spanning  24  paragraphs,  to  these  issues.  13  Although  we  proposed  to  restrict  the  availability  of  compliance  extensions 
 under  section  107(  c)  14  and  noted  that  there  is  a  significant  burden  on  section  109(  b)  petitioners,  15  we  thoroughly  considered  the  potential  impact  of  those  proposals  on  small  businesses,  but  concluded  that  it 
 would  be  inconsistent  with  the  CALEA  statute  to  make  exceptions  for  small  businesses  with  respect  to  section  107(  c)  and  section  109(  b)  petitions.  Third,  with  respect  to  TTPs,  we  devoted  a  subsection  of  the 
 Notice,  spanning  eight  paragraphs,  to  that  issue.  We  noted  therein  that  there  may  be  some  tension  between  relying  on  a  TTP  model  and  safe  harbor  standards,  but  that  TTPs  had  the  potential  to  simplify  or  ease  the 


 7  See  Second  R&  O,  paras.  16,  26,  36,  56,  and  78. 
 8  NTCA  Reply  Comments  at  3;  Advocacy  Reply  Comments  at  1-  4. 
 9  First  R&  O  at  20  FCC  Rcd  15022-  23,  App.  C. 
 10  NTCA  Comments  at  7. 
 11  Advocacy  Reply  Comments  at  7-  8. 
 12  See  Notice,  19  FCC  Rcd  at  15704-  05,  para  49. 
 13  Id.  19  FCC  Rcd  at  15720-  30,  paras.  87-  110. 
 14  Id.  19  FCC  Rcd  at  15720,  para.  87. 
 15  Id.  19  FCC  Rcd  at  15728-  29,  paras.  104-  06. 
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 burden  on  carriers  and  manufacturers  in  providing  packet  content  and  call-  identifying  information  to  LEAs.  16  Further,  we  noted  that  external  TTP  systems  might  provide  economies  of  scale  for  small  carriers.  17 
 Therefore,  we  believe  that  a  revised  IRFA  is  not  necessary  on  any  of  these  issues. 
 C.  Description  and  Estimate  of  the  Number  of  Small  Entities  to  Which  Rules  Will  Apply 
 7.  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  proposed  rules.  18  The  RFA  generally  defines  the  term 
 small  entity  as  having  the  same  meaning  as  the  terms  small  business,  small  organization,  and  small  governmental  jurisdiction.  19  In  addition,  the  term  small  business  has  the  same  meaning  as  the  term 
 small  business  concern  under  the  Small  Business  Act.  20  A  small  business  concern  is  one  which:  (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).  21 
 1.  Telecommunications  Service  Entities 
 a.  Wireline  Carriers  and  Service  Providers 
 8.  Small  Incumbent  Local  Exchange  Carriers  (LECs).  We  have  included  small  incumbent  LECs  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.  22  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.  23  We  have  therefore  included  small  incumbent  LECs  in  this  RFA  analysis,  although  we 
 emphasize  that  this  RFA  action  has  no  effect  on  Commission  analyses  and  determinations  in  other,  non-  RFA  contexts. 


 9.  Incumbent  Local  Exchange  Carriers.  Neither  the  Commission  nor  the  SBA  has  developed  a  small  business  size  standard  specifically  for  incumbent  local  exchange  services.  The  appropriate  size 
 standard  under  SBA  rules  is  for  the  category  Wired  Telecommunications  Carriers.  Under  that  size  standard, 


 16  Id.  19  FCC  Rcd  at  15714-  16,  paras.  69-  76. 
 17  Id.  19  FCC  Rcd  at  15715,  para.  72. 
 18  5  U.  S.  C.    603(  b)(  3),  604(  a)(  3). 
 19  5  U.  S.  C.    601(  6). 
 20  5  U.  S.  C.    601(  3)  (incorporating  by  reference  the  definition  of  small  business  concern  in  the  Small  Business 
 Act,  15  U.  S.  C.    632).  Pursuant  to  5  U.  S.  C.    601(  3),  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  terms  which  are  appropriate  to  the  activities  of  the  agency  and  publishes  such  definitions(  s)  in  the  Federal  Register. 
 21  15  U.  S.  C.    632. 
 22  15  U.  S.  C.    632. 
 23  Letter  from  Jere  W.  Glover,  Chief  Counsel  for  Advocacy,  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.  See  13  C.  F.  R.    121.102(  b). 
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 such  a  business  is  small  if  it  has  1,500  or  fewer  employees.  24  According  to  Commission  data,  25  1,303  carriers  have  reported  that  they  are  engaged  in  the  provision  of  incumbent  local  exchange  services.  Of  these 
 1,303  carriers,  an  estimated  1,020  have  1,500  or  fewer  employees  and  283  have  more  than  1,500  employees.  Consequently,  the  Commission  estimates  that  most  providers  of  incumbent  local  exchange  service  are  small 
 businesses  that  may  be  affected  by  our  action.  In  addition,  limited  preliminary  census  data  for  2002  indicate  that  the  total  number  of  wired  communications  carriers  increased  approximately  34  percent  from  1997  to 
 2002.  26 
 10.  Competitive  Local  Exchange  Carriers,  Competitive  Access  Providers  (CAPs),  Shared-  Tenant  Service  Providers,  and  Other  Local  Service  Providers.  Neither  the  Commission  nor  the  SBA  has 
 developed  a  small  business  size  standard  specifically  for  these  service  providers.  The  appropriate  size  standard  under  SBA  rules  is  for  the  category  Wired  Telecommunications  Carriers.  Under  that  size  standard, 
 such  a  business  is  small  if  it  has  1,500  or  fewer  employees.  27  According  to  Commission  data,  28  769  carriers  have  reported  that  they  are  engaged  in  the  provision  of  either  competitive  access  provider  services  or 
 competitive  local  exchange  carrier  services.  Of  these  769  carriers,  an  estimated  676  have  1,500  or  fewer  employees  and  93  have  more  than  1,500  employees.  In  addition,  12  carriers  have  reported  that  they  are 
 Shared-  Tenant  Service  Providers,  and  all  12  are  estimated  to  have  1,500  or  fewer  employees.  In  addition,  39  carriers  have  reported  that  they  are  Other  Local  Service  Providers.  Of  the  39,  an  estimated  38  have 
 1,500  or  fewer  employees  and  one  has  more  than  1,500  employees.  Consequently,  the  Commission  estimates  that  most  providers  of  competitive  local  exchange  service,  competitive  access  providers,  Shared-Tenant 
 Service  Providers,  and  Other  Local  Service  Providers  are  small  entities  that  may  be  affected  by  our  action.  In  addition,  limited  preliminary  census  data  for  2002  indicate  that  the  total  number  of  wired 
 communications  carriers  increased  approximately  34  percent  from  1997  to  2002.  29 
 11.  Payphone  Service  Providers  (PSPs).  Neither  the  Commission  nor  the  SBA  has  developed  a  small  business  size  standard  specifically  for  payphone  services  providers.  The  appropriate  size  standard 
 under  SBA  rules  is  for  the  category  Wired  Telecommunications  Carriers.  Under  that  size  standard,  such  a  business  is  small  if  it  has  1,500  or  fewer  employees.  30  According  to  Commission  data,  31  654  carriers  have 
 reported  that  they  are  engaged  in  the  provision  of  payphone  services.  Of  these,  an  estimated  652  have  1,500  or  fewer  employees  and  two  have  more  than  1,500  employees.  Consequently,  the  Commission  estimates  that 
 the  majority  of  payphone  service  providers  are  small  entities  that  may  be  affected  by  our  action.  In  addition, 


 24  13  C.  F.  R.    121.201,  NAICS  code  517110. 
 25  FCC,  Wireline  Competition  Bureau,  Industry  Analysis  and  Technology  Division,  Trends  in  Telephone  Service 
 at  Table  5.3,  page  5-  5  (June  2004)  (  Trends  in  Telephone  Service).  26 
 See  U.  S.  Census  Bureau,  2002  Economic  Census,  Industry  Series:  Information,  Table  2,  Comparative  Statistics  for  the  United  States  (1997  NAICS  Basis):  2002  and  1997,  NAICS  code  513310  (issued  Nov.  2004).  The 


 preliminary  data  indicate  that  the  total  number  of  establishments  increased  from  20,815  to  27,891.  In  this  context,  the  number  of  establishments  is  a  less  helpful  indicator  of  small  business  prevalence  than  is  the  number  of  firms, 
 because  the  latter  number  takes  into  account  the  concept  of  common  ownership  or  control.  27 
 13  C.  F.  R.    121.201,  NAICS  code  517110.  28 
 Trends  in  Telephone  Service  at  Table  5.3.  29 
 See  supra  n.  26.  30 
 13  C.  F.  R.    121.201,  NAICS  code  517110.  31 
 Trends  in  Telephone  Service  at  Table  5.3. 
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 limited  preliminary  census  data  for  2002  indicate  that  the  total  number  of  wired  communications  carriers  increased  approximately  34  percent  from  1997  to  2002.  32 
 12.  Interexchange  Carriers  (IXCs).  Neither  the  Commission  nor  the  SBA  has  developed  a  small  business  size  standard  specifically  for  providers  of  interexchange  services.  The  appropriate  size  standard 
 under  SBA  rules  is  for  the  category  Wired  Telecommunications  Carriers.  Under  that  size  standard,  such  a  business  is  small  if  it  has  1,500  or  fewer  employees.  33  According  to  Commission  data,  34  316  carriers  have 
 reported  that  they  are  engaged  in  the  provision  of  interexchange  service.  Of  these,  an  estimated  292  have  1,500  or  fewer  employees  and  24  have  more  than  1,500  employees.  Consequently,  the  Commission 
 estimates  that  the  majority  of  IXCs  are  small  entities  that  may  be  affected  by  our  action.  In  addition,  limited  preliminary  census  data  for  2002  indicate  that  the  total  number  of  wired  communications  carriers  increased 
 approximately  34  percent  from  1997  to  2002.  35 
 13.  Operator  Service  Providers  (OSPs).  Neither  the  Commission  nor  the  SBA  has  developed  a  small  business  size  standard  specifically  for  operator  service  providers.  The  appropriate  size  standard  under 
 SBA  rules  is  for  the  category  Wired  Telecommunications  Carriers.  Under  that  size  standard,  such  a  business  is  small  if  it  has  1,500  or  fewer  employees.  36  According  to  Commission  data,  37  23  carriers  have  reported  that 
 they  are  engaged  in  the  provision  of  operator  services.  Of  these,  an  estimated  20  have  1,500  or  fewer  employees  and  three  have  more  than  1,500  employees.  Consequently,  the  Commission  estimates  that  the 
 majority  of  OSPs  are  small  entities  that  may  be  affected  by  our  action.  In  addition,  limited  preliminary  census  data  for  2002  indicate  that  the  total  number  of  wired  communications  carriers  increased 
 approximately  34  percent  from  1997  to  2002.  38 
 14.  Prepaid  Calling  Card  Providers.  Neither  the  Commission  nor  the  SBA  has  developed  a  small  business  size  standard  specifically  for  prepaid  calling  card  providers.  The  appropriate  size  standard  under 
 SBA  rules  is  for  the  category  Telecommunications  Resellers.  Under  that  size  standard,  such  a  business  is  small  if  it  has  1,500  or  fewer  employees.  39  According  to  Commission  data,  40  89  carriers  have  reported  that 
 they  are  engaged  in  the  provision  of  prepaid  calling  cards.  Of  these,  88  are  estimated  to  have  1,500  or  fewer  employees  and  one  has  more  than  1,500  employees.  Consequently,  the  Commission  estimates  that  all  or  the 
 majority  of  prepaid  calling  card  providers  are  small  entities  that  may  be  affected  by  our  action. 
 b.  Wireless  Telecommunications  Service  Providers 


 15.  Below,  for  those  services  subject  to  auctions,  we  note  that,  as  a  general  matter,  the  number  of  winning  bidders  that  qualify  as  small  businesses  at  the  close  of  an  auction  does  not  necessarily  represent  the 
 number  of  small  businesses  currently  in  service.  Also,  the  Commission  does  not  generally  track  subsequent  business  size  unless,  in  the  context  of  assignments  or  transfers,  unjust  enrichment  issues  are  implicated. 


 32  See  supra  n.  26. 
 33  13  C.  F.  R.    121.201,  NAICS  code  517110. 
 34  Trends  in  Telephone  Service  at  Table  5.3. 
 35  See  supra  n.  26. 
 36  13  C.  F.  R.    121.201,  NAICS  code  517110. 
 37  Trends  in  Telephone  Service  at  Table  5.3. 
 38  See  supra  n.  26. 
 39  13  C.  F.  R.    121.201,  NAICS  code  517310. 
 40  Trends  in  Telephone  Service  at  Table  5.3. 
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 16.  Wireless  Service  Providers.  The  SBA  has  developed  a  small  business  size  standard  for  wireless  firms  within  the  two  broad  economic  census  categories  of  Paging  41  and  Cellular  and  Other  Wireless 
 Telecommunications.  42  Under  both  SBA  categories,  a  wireless  business  is  small  if  it  has  1,500  or  fewer  employees.  For  the  census  category  of  Paging,  Census  Bureau  data  for  1997  show  that  there  were  1,320 
 firms  in  this  category,  total,  that  operated  for  the  entire  year.  43  Of  this  total,  1,303  firms  had  employment  of  999  or  fewer  employees,  and  an  additional  17  firms  had  employment  of  1,000  employees  or  more.  44  Thus, 
 under  this  category  and  associated  small  business  size  standard,  the  majority  of  firms  can  be  considered  small.  For  the  census  category  Cellular  and  Other  Wireless  Telecommunications,  Census  Bureau  data  for 
 1997  show  that  there  were  977  firms  in  this  category,  total,  that  operated  for  the  entire  year.  45  Of  this  total,  965  firms  had  employment  of  999  or  fewer  employees,  and  an  additional  12  firms  had  employment  of  1,000 
 employees  or  more.  46  Thus,  under  this  second  category  and  size  standard,  the  majority  of  firms  can,  again,  be  considered  small.  In  addition,  limited  preliminary  census  data  for  2002  indicate  that  the  total  number  of 
 paging  providers  decreased  approximately  51  percent  from  1997  to  2002.  47  In  addition,  limited  preliminary  census  data  for  2002  indicate  that  the  total  number  of  cellular  and  other  wireless  telecommunications  carriers 
 increased  approximately  321  percent  from  1997  to  2002.  48 
 17.  Cellular  Licensees.  The  SBA  has  developed  a  small  business  size  standard  for  wireless  firms  within  the  broad  economic  census  category  Cellular  and  Other  Wireless  Telecommunications.  49  Under 
 this  SBA  category,  a  wireless  business  is  small  if  it  has  1,500  or  fewer  employees.  For  the  census  category  Cellular  and  Other  Wireless  Telecommunications  firms,  Census  Bureau  data  for  1997  show  that  there  were 
 977  firms  in  this  category,  total,  that  operated  for  the  entire  year.  50  Of  this  total,  965  firms  had  employment 


 41  13  C.  F.  R.    121.201,  NAICS  code  517211. 
 42  13  C.  F.  R.    121.201,  NAICS  code  517212. 
 43  U.  S.  Census  Bureau,  1997  Economic  Census,  Subject  Series:  Information,  Table  5,  Employment  Size  of  Firms 
 Subject  to  Federal  Income  Tax:  1997,  NAICS  code  513321  (issued  October  2000).  44 
 Id.  The  census  data  do  not  provide  a  more  precise  estimate  of  the  number  of  firms  that  have  employment  of  1,500  or  fewer  employees;  the  largest  category  provided  is  Firms  with  1000  employees  or  more. 


 45  U.  S.  Census  Bureau,  1997  Economic  Census,  Subject  Series:  Information,  Table  5,  Employment  Size  of  Firms 
 Subject  to  Federal  Income  Tax:  1997,  NAICS  code  513322  (issued  October  2000).  46 
 Id.  The  census  data  do  not  provide  a  more  precise  estimate  of  the  number  of  firms  that  have  employment  of  1,500  or  fewer  employees;  the  largest  category  provided  is  Firms  with  1000  employees  or  more. 


 47  See  U.  S.  Census  Bureau,  2002  Economic  Census,  Industry  Series:  Information,  Table  2,  Comparative  Statistics 
 for  the  United  States  (1997  NAICS  Basis):  2002  and  1997,  NAICS  code  513321  (issued  Nov.  2004).  The  preliminary  data  indicate  that  the  total  number  of  establishments  decreased  from  3,427  to  1,664.  In  this  context, 


 the  number  of  establishments  is  a  less  helpful  indicator  of  small  business  prevalence  than  is  the  number  of  firms,  because  the  latter  number  takes  into  account  the  concept  of  common  ownership  or  control. 
 48  See  U.  S.  Census  Bureau,  2002  Economic  Census,  Industry  Series:  Information,  Table  2,  Comparative  Statistics 
 for  the  United  States  (1997  NAICS  Basis):  2002  and  1997,  NAICS  code  513322  (issued  Nov.  2004).  The  preliminary  data  indicate  that  the  total  number  of  establishments  increased  from  2,959  to  9,511.  In  this  context, 


 the  number  of  establishments  is  a  less  helpful  indicator  of  small  business  prevalence  than  is  the  number  of  firms,  because  the  latter  number  takes  into  account  the  concept  of  common  ownership  or  control. 
 49  13  C.  F.  R.    121.201,  NAICS  code  517212. 
 50  U.  S.  Census  Bureau,  1997  Economic  Census,  Subject  Series:  Information,  Table  5,  Employment  Size  of  Firms 
 Subject  to  Federal  Income  Tax:  1997,  NAICS  code  513322  (issued  October  2000). 
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 of  999  or  fewer  employees,  and  an  additional  12  firms  had  employment  of  1,000  employees  or  more.  51  Thus,  under  this  category  and  size  standard,  the  great  majority  of  firms  can  be  considered  small.  Also, 
 according  to  Commission  data,  437  carriers  reported  that  they  were  engaged  in  the  provision  of  cellular  service,  Personal  Communications  Service  (PCS),  or  Specialized  Mobile  Radio  (SMR)  Telephony  services, 
 which  are  placed  together  in  the  data.  52  We  have  estimated  that  260  of  these  are  small,  under  the  SBA  small  business  size  standard.  53 


 18.  Common  Carrier  Paging.  The  SBA  has  developed  a  small  business  size  standard  for  wireless  firms  within  the  broad  economic  census  category,  Cellular  and  Other  Wireless  Telecommunications.  54 
 Under  this  SBA  category,  a  wireless  business  is  small  if  it  has  1,500  or  fewer  employees.  For  the  census  category  of  Paging,  Census  Bureau  data  for  1997  show  that  there  were  1,320  firms  in  this  category,  total, 
 that  operated  for  the  entire  year.  55  Of  this  total,  1,303  firms  had  employment  of  999  or  fewer  employees,  and  an  additional  17  firms  had  employment  of  1,000  employees  or  more.  56  Thus,  under  this  category  and 
 associated  small  business  size  standard,  the  majority  of  firms  can  be  considered  small. 
 19.  In  the  Paging  Third  Report  and  Order,  we  developed  a  small  business  size  standard  for  small  businesses  and  very  small  businesses  for  purposes  of  determining  their  eligibility  for  special  provisions 
 such  as  bidding  credits  and  installment  payments.  57  A  small  business  is  an  entity  that,  together  with  its  affiliates  and  controlling  principals,  has  average  gross  revenues  not  exceeding  $15  million  for  the  preceding 
 three  years.  Additionally,  a  very  small  business  is  an  entity  that,  together  with  its  affiliates  and  controlling  principals,  has  average  gross  revenues  that  are  not  more  than  $3  million  for  the  preceding  three  years.  58  The 
 SBA  has  approved  these  small  business  size  standards.  59  An  auction  of  Metropolitan  Economic  Area  licenses  closed  on  March  2,  2000.  60  Of  the  985  licenses  auctioned,  440  were  sold.  Fifty-  seven  companies 
 claiming  small  business  status  won.  Also,  according  to  Commission  data,  375  carriers  reported  that  they  were  engaged  in  the  provision  of  paging  and  messaging  services.  61  Of  those,  we  estimate  that  370  are  small, 
 under  the  SBA-  approved  small  business  size  standard. 


 51  Id.  The  census  data  do  not  provide  a  more  precise  estimate  of  the  number  of  firms  that  have  employment  of  1,500 
 or  fewer  employees;  the  largest  category  provided  is  Firms  with  1000  employees  or  more.  52 
 Trends  in  Telephone  Service  at  Table  5.3.  53 
 Id.  54 
 13  C.  F.  R.    121.201,  NAICS  code  517212.  55 
 U.  S.  Census  Bureau,  1997  Economic  Census,  Subject  Series:  Information,  Table  5,  Employment  Size  of  Firms  Subject  to  Federal  Income  Tax:  1997,  NAICS  code  513321  (issued  October  2000). 


 56  Id.  The  census  data  do  not  provide  a  more  precise  estimate  of  the  number  of  firms  that  have  employment  of  1,500 
 or  fewer  employees;  the  largest  category  provided  is  Firms  with  1000  employees  or  more.  57 
 Amendment  of  Part  90  of  the  Commissions  Rules  to  Provide  for  the  Use  of  the  220-  222  MHz  Band  by  the  Private  Land  Mobile  Radio  Service,  PR  Docket  No.  89-  552,  Third  Report  and  Order  and  Fifth  Notice  of  Proposed 


 Rulemaking,  12  FCC  Rcd  10943,  11068-  70,  paras.  291-  295,  62  FR  16004  (Apr.  3,  1997).  58 
 See  Letter  to  Amy  Zoslov,  Chief,  Auctions  and  Industry  Analysis  Division,  Wireless  Telecommunications  Bureau,  FCC,  from  A.  Alvarez,  Administrator,  SBA  (Dec.  2,  1998)  (SBA  Dec.  2,  1998  letter). 


 59  Id. 
 60  Public  Notice,  929  and  931  MHz  Paging  Auction  Closes,  DA  00-  508,  March  6,  2000. 
 61  Trends  in  Telephone  Service  at  Table  5.3. 
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 20.  Wireless  Communications  Services.  This  service  can  be  used  for  fixed,  mobile,  radiolocation,  and  digital  audio  broadcasting  satellite  uses.  The  Commission  established  small  business  size  standards  for 
 the  wireless  communications  services  (WCS)  auction.  62  A  small  business  is  an  entity  with  average  gross  revenues  of  $40  million  for  each  of  the  three  preceding  years,  and  a  very  small  business  is  an  entity  with 
 average  gross  revenues  of  $15  million  for  each  of  the  three  preceding  years.  The  SBA  has  approved  these  small  business  size  standards.  63  The  Commission  auctioned  geographic  area  licenses  in  the  WCS  service.  In 
 the  auction,  there  were  seven  winning  bidders  that  qualified  as  very  small  business  entities,  and  one  that  qualified  as  a  small  business  entity. 


 21.  Wireless  Telephony.  Wireless  telephony  includes  cellular,  personal  communications  services  (PCS),  and  specialized  mobile  radio  (SMR)  telephony  carriers.  As  noted  earlier,  the  SBA  has  developed  a 
 small  business  size  standard  for  Cellular  and  Other  Wireless  Telecommunications  services.  64  Under  that  SBA  small  business  size  standard,  a  business  is  small  if  it  has  1,500  or  fewer  employees.  65  According  to 
 Commission  data,  437  carriers  reported  that  they  were  engaged  in  the  provision  of  wireless  telephony.  66  We  have  estimated  that  260  of  these  are  small  under  the  SBA  small  business  size  standard. 


 22.  Broadband  Personal  Communications  Service.  The  broadband  Personal  Communications  Service  (PCS)  spectrum  is  divided  into  six  frequency  blocks  designated  A  through  F,  and  the  Commission 
 has  held  auctions  for  each  block.  The  Commission  defined  small  entity  for  Blocks  C  and  F  as  an  entity  that  has  average  gross  revenues  of  $40  million  or  less  in  the  three  previous  calendar  years.  67  For  Block  F,  an 
 additional  classification  for  very  small  business  was  added  and  is  defined  as  an  entity  that,  together  with  its  affiliates,  has  average  gross  revenues  of  not  more  than  $15  million  for  the  preceding  three  calendar  years.  68 
 These  standards  defining  small  entity  in  the  context  of  broadband  PCS  auctions  have  been  approved  by  the  SBA.  69  No  small  businesses,  within  the  SBA-  approved  small  business  size  standards  bid  successfully  for 
 licenses  in  Blocks  A  and  B.  There  were  90  winning  bidders  that  qualified  as  small  entities  in  the  Block  C  auctions.  A  total  of  93  small  and  very  small  business  bidders  won  approximately  40  percent  of  the  1,479 
 licenses  for  Blocks  D,  E,  and  F.  70  On  March  23,  1999,  the  Commission  re-  auctioned  347  C,  D,  E,  and  F  Block  licenses.  There  were  48  small  business  winning  bidders.  On  January  26,  2001,  the  Commission 
 completed  the  auction  of  422  C  and  F  Broadband  PCS  licenses  in  Auction  No.  35.  Of  the  35  winning  bidders  in  this  auction,  29  qualified  as  small  or  very  small  businesses.  Subsequent  events,  concerning 


 62  Public  Notice,  Auction  of  Wireless  Communications  Services,  Auction  Notes  and  Filing  Requirements  for  128 
 WCS  Licenses  Scheduled  for  April  15,  1997,  DA  97-  386,  Feb.  21,  1997.  63 
 SBA  Dec.  2,  1998  letter,  supra  n.  58.  64 
 13  C.  F.  R.    121.201,  NAICS  code  517212.  65 
 Id.  66 
 Trends  in  Telephone  Service  at  Table  5.3.  67 
 See  Amendment  of  Parts  20  and  24  of  the  Commissions  Rules    Broadband  PCS  Competitive  Bidding  and  the  Commercial  Mobile  Radio  Service  Spectrum  Cap,  WT  Docket  No.  96-  59,  Report  and  Order,  11  FCC  Rcd  7824,  61 


 FR  33859  (July  1,  1996)  (PCS  Order);  see  also  47  C.  F.  R.    24.720(  b).  68 
 See  PCS  Order,  11  FCC  Rcd  7824.  69 
 See,  e.  g.,  Implementation  of  Section  309(  j)  of  the  Communications  Act    Competitive  Bidding,  PP  Docket  No.  93-  253,  Fifth  Report  and  Order,  9  FCC  Rcd  5332,  59  FR  37566  (July  22,  1994). 


 70  FCC  News,  Broadband  PCS,  D,  E  and  F  Block  Auction  Closes,  No.  71744  (rel.  Jan.  14,  1997);  see  also 
 Amendment  of  the  Commissions  Rules  Regarding  Installment  Payment  Financing  for  Personal  Communications  Services  (PCS)  Licenses,  WT  Docket  No.  97-  82,  Second  Report  and  Order,  12  FCC  Rcd  16436,  62  FR  55348  (Oct. 


 24,  1997). 
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 Auction  35,  including  judicial  and  agency  determinations,  resulted  in  a  total  of  163  C  and  F  Block  licenses  being  available  for  grant. 
 c.  Satellite  Telecommunications  Service  Providers 
 23.  Satellite  telecommunications  service  providers  include  satellite  operators  and  earth  station  operators.  The  Commission  has  not  developed  a  definition  of  small  entities  applicable  to  such  operators. 
 Therefore,  the  applicable  definition  of  small  entity  is  generally  the  definition  under  the  SBA  rules  applicable  to  Satellite  Telecommunications.  This  definition  provides  that  a  small  entity  is  expressed  as  one  with  $13.5 
 million  or  less  in  annual  receipts.  71  1997  Census  Bureau  data  indicate  that,  for  1997,  273  satellite  communication  firms  had  annual  receipts  of  under  $10  million.  In  addition,  24  firms  had  receipts  for  that 
 year  of  $10  million  to  $24,999,990. 
 2.  Cable  and  OVS  Operators 


 24.  Cable  and  Other  Program  Distribution.  The  Census  Bureau  defines  this  category  as  follows:  This  industry  comprises  establishments  primarily  engaged  as  third-  party  distribution  systems  for  broadcast 
 programming.  The  establishments  of  this  industry  deliver  visual,  aural,  or  textual  programming  received  from  cable  networks,  local  television  stations,  or  radio  networks  to  consumers  via  cable  or  direct-  to-  home 
 satellite  systems  on  a  subscription  or  fee  basis.  These  establishments  do  not  generally  originate  programming  material.  72  The  SBA  has  developed  a  small  business  size  standard  for  Cable  and  Other  Program 
 Distribution,  which  is:  all  such  firms  having  $13.5  million  or  less  in  annual  receipts.  73  According  to  Census  Bureau  data  for  2002,  there  were  a  total  of  1,191  firms  in  this  category  that  operated  for  the  entire  year.  74  Of 
 this  total,  1,087  firms  had  annual  receipts  of  under  $10  million,  and  43  firms  had  receipts  of  $10  million  or  more  but  less  than  $25  million.  75  Thus,  under  this  size  standard,  the  majority  of  firms  can  be  considered 
 small. 
 25.  Cable  Companies  and  Systems.  The  Commission  has  also  developed  its  own  small  business  size  standards,  for  the  purpose  of  cable  rate  regulation.  Under  the  Commissions  rules,  a  small  cable  company 
 is  one  serving  400,000  or  fewer  subscribers,  nationwide.  76  Industry  data  indicate  that,  of  1,076  cable  operators  nationwide,  all  but  eleven  are  small  under  this  size  standard.  77  In  addition,  under  the 
 Commissions  rules,  a  small  system  is  a  cable  system  serving  15,000  or  fewer  subscribers.  78  Industry  data 


 71  13  C.  F.  R.    121.201,  North  American  Industry  Classification  System  (NAICS)  code  517410. 
 72  U.  S.  Census  Bureau,  2002  NAICS  Definitions,  517510  Cable  and  Other  Program  Distribution; 
 http://  www.  census.  gov/  epcd/  naics02/  def/  NDEF517.  HTM.  73 
 13  C.  F.  R.    121.201,  NAICS  code  517510. 
 74  U.  S.  Census  Bureau,  2002  Economic  Census,  Subject  Series:  Information,  Table  4,  Receipts  Size  of  Firms  for  the 
 United  States:  2002,  NAICS  code  517510  (issued  November  2005).  75 
 Id.  An  additional  61  firms  had  annual  receipts  of  $25  million  or  more.  76 
 47  C.  F.  R.    76.901(  e).  The  Commission  determined  that  this  size  standard  equates  approximately  to  a  size  standard  of  $100  million  or  less  in  annual  revenues.  Implementation  of  Sections  of  the  1992  Cable  Act:  Rate 


 Regulation,  Sixth  Report  and  Order  and  Eleventh  Order  on  Reconsideration,  10  FCC  Rcd  7393,  7408  (1995).  77 
 These  data  are  derived  from:  R.  R.  Bowker,  Broadcasting  &  Cable  Yearbook  2006,  Top  25  Cable/  Satellite  Operators,  pages  A-  8  &  C-  2  (data  current  as  of  June  30,  2005);  Warren  Communications  News,  Television  & 


 Cable  Factbook  2006,  Ownership  of  Cable  Systems  in  the  United  States,  pages  D-  1805  to  D-  1857.  78 
 47  C.  F.  R.    76.901(  c). 
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 indicate  that,  of  7,208  systems  nationwide,  6,139  systems  have  under  10,000  subscribers,  and  an  additional  379  systems  have  10,000-  19,999  subscribers.  79  Thus,  under  this  second  size  standard,  most  cable  systems 
 are  small. 
 26.  Cable  System  Operators.  The  Communications  Act  of  1934,  as  amended,  also  contains  a  size  standard  for  small  cable  system  operators,  which  is  a  cable  operator  that,  directly  or  through  an  affiliate, 
 serves  in  the  aggregate  fewer  than  1  percent  of  all  subscribers  in  the  United  States  and  is  not  affiliated  with  any  entity  or  entities  whose  gross  annual  revenues  in  the  aggregate  exceed  $250,000,000.  80  The 
 Commission  has  determined  that  an  operator  serving  fewer  than  677,000  subscribers  shall  be  deemed  a  small  operator,  if  its  annual  revenues,  when  combined  with  the  total  annual  revenues  of  all  its  affiliates,  do  not 
 exceed  $250  million  in  the  aggregate.  81  Industry  data  indicate  that,  of  1,076  cable  operators  nationwide,  all  but  ten  are  small  under  this  size  standard.  82  We  note  that  the  Commission  neither  requests  nor  collects 
 information  on  whether  cable  system  operators  are  affiliated  with  entities  whose  gross  annual  revenues  exceed  $250  million,  83  and  therefore  we  are  unable  to  estimate  more  accurately  the  number  of  cable  system 
 operators  that  would  qualify  as  small  und 
 27.  Open  Video  Services.  Open  Video  Service  (OVS)  systems  provide  subscription  services.  84  The  SBA  has  created  a  small  business  size  standard  for  Cable  and  Other  Program  Distribution.  85  This  standard 
 provides  that  a  small  entity  is  one  with  $12.5  million  or  less  in  annual  receipts.  The  Commission  has  certified  a  large  number  of  OVS  operators,  and  some  of  these  are  currently  providing  service.  86  Affiliates  of 
 Residential  Communications  Network,  Inc.  (RCN)  received  approval  to  operate  OVS  systems  in  New  York  City,  Boston,  Washington,  D.  C.,  and  other  areas.  RCN  has  sufficient  revenues  to  assure  that  it  does  not 
 qualify  as  a  small  business  entity.  Little  financial  information  is  available  for  the  other  entities  that  are  authorized  to  provide  OVS.  Given  this  fact,  the  Commission  concludes  that  those  entities  might  qualify  as 
 small  businesses,  and  therefore  may  be  affected  by  the  rules  and  policies  adopted  herein. 
 3.  Internet  and  other  Information  Service  Providers 


 28.  Internet  Service  Providers.  The  SBA  has  developed  a  small  business  size  standard  for  Internet  Service  Providers  (ISPs).  ISPs  provide  clients  access  to  the  Internet  and  generally  provide  related  services 
 such  as  web  hosting,  web  page  designing,  and  hardware  or  software  consulting  related  to  Internet 
 79  Warren  Communications  News,  Television  &  Cable  Factbook  2006,  U.  S.  Cable  Systems  by  Subscriber  Size, 
 page  F-  2  (data  current  as  of  Oct.  2005).  The  data  do  not  include  718  systems  for  which  classifying  data  were  not  available. 


 80  47  U.  S.  C.    543(  m)(  2);  see  47  C.  F.  R.    76.901(  f)  &  nn.  1-  3. 
 81  47  C.  F.  R.    76.901(  f);  see  Public  Notice,  FCC  Announces  New  Subscriber  Count  for  the  Definition  of  Small 
 Cable  Operator,  DA  01-  158  (Cable  Services  Bureau,  Jan.  24,  2001).  82 
 These  data  are  derived  from:  R.  R.  Bowker,  Broadcasting  &  Cable  Yearbook  2006,  Top  25  Cable/  Satellite  Operators,  pages  A-  8  &  C-  2  (data  current  as  of  June  30,  2005);  Warren  Communications  News,  Television  & 


 Cable  Factbook  2006,  Ownership  of  Cable  Systems  in  the  United  States,  pages  D-  1805  to  D-  1857.  83 
 The  Commission  does  receive  such  information  on  a  case-  by-  case  basis  if  a  cable  operator  appeals  a  local  franchise  authoritys  finding  that  the  operator  does  not  qualify  as  a  small  cable  operator  pursuant  to    76.901(  f)  of 


 the  Commissions  rules.  See  47  C.  F.  R.    76.909(  b).  84 
 See  47  U.  S.  C.    573.  85 
 13  C.  F.  R.    121.201,  NAICS  code  518111.  86 
 See  http://  www.  fcc.  gov/  mb/  ovs/  csovsarc.  html  and  http://  www.  fcc.  gov/  mb/  ovs/  csovscer.  html  (each  visited  in  April  2006). 
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 connectivity.  87  Under  the  SBA  size  standard,  such  a  business  is  small  if  it  has  average  annual  receipts  of  $23  million  or  less.  88  According  to  Census  Bureau  data  for  2002,  there  were  2,529  firms  in  this  category  that 
 operated  for  the  entire  year.  89  Of  these,  2,437  firms  had  annual  receipts  of  under  $10  million,  and  47  firms  had  receipts  of  $10  million  or  more  but  less  then  $25  million.  90  Consequently,  we  estimate  that  the  majority 
 of  these  firms  are  small  entities  that  may  be  affected  by  our  action. 
 29.  All  Other  Information  Services.  This  industry  comprises  establishments  primarily  engaged  in  providing  other  information  services  (except  new  syndicates  and  libraries  and  archives).  91  Our  action 
 pertains  to  VoIP  services,  which  could  be  provided  by  entities  that  provide  other  services  such  as  email,  online  gaming,  web  browsing,  video  conferencing,  instant  messaging,  and  other,  similar  IP-  enabled  services. 
 The  SBA  has  developed  a  small  business  size  standard  for  this  category;  that  size  standard  is  $6.5  million  or  less  in  average  annual  receipts.  92  According  to  Census  Bureau  data  for  1997,  there  were  195  firms  in  this 
 category  that  operated  for  the  entire  year.  93  Of  these,  172  had  annual  receipts  of  under  $5  million,  and  an  additional  nine  firms  had  receipts  of  between  $5  million  and  $9,999,999.  Consequently,  we  estimate  that  the 
 majority  of  these  firms  are  small  entities  that  may  be  affected  by  our  action. 
 D.  Description  of  Projected  Reporting,  Recordkeeping  and  Other  Compliance  Requirements 


 30.  This  Second  R&  O  requires  that  facilities-  based  broadband  Internet  access  providers  and  providers  of  interconnected  VoIP  submit  monitoring  reports  to  the  Commission  to  ensure  their  CALEA 
 compliance  by  the  May  14,  2007  deadline  established  by  the  First  R&  O.  The  Second  R&  O  also  requires  that,  within  90  days  of  its  effective  date,  facilities-  based  broadband  Internet  access  providers  and  providers 
 of  interconnected  VoIP  who  were  newly-  identified  in  the  First  R&  O  as  subject  to  CALEA  submit  system  security  statements  to  the  Commission.  Additionally,  the  Second  R&  O  requires  that  each  carrier  that  has  a 
 CALEA  section  107(  c)  petition  on  file  with  the  Commission  submit  to  us  a  letter  documenting  that  the  carriers  equipment,  facility,  or  service  qualifies  for  section  107(  c)  relief  under  the  October  25,  1998  cutoff 
 for  such  relief.  The  Second  R&  O  contains  new  information  collection  requirements  subject  to  the  Paperwork  Reduction  Act  of  1995  (PRA),  Public  Law  104-  13.  They  will  be  submitted  to  the  Office  of  Management  and 
 Budget  (OMB)  for  review  under  Section  3507(  d)  of  the  PRA.  OMB,  the  general  public,  and  other  Federal  agencies  are  invited  to  comment  on  the  new  or  modified  information  collection  requirements  contained  in 
 this  proceeding. 


 87  U.  S.  Census  Bureau,  2002  NAICS  Definitions:  518111  Internet  Service  Providers  (Feb.  2004) 
 <www.  census.  gov>.  88 
 13  C.  F.  R.    121.201,  NAICS  code  514191,  On-  Line  Information  Services.  89 
 U.  S.  Census  Bureau,  2002  Economic  Census,  Subject  Series:  Information,  Table  4,  Receipts  Size  of  Firms  for  the  United  States:  2002,  NAICS  code  518111  (issued  November  2005). 


 90  Id.  An  additional  45  firms  had  annual  receipts  of  $25  million  or  more. 
 91  U.  S.  Census  Bureau,  2002  NAICS  Definitions:  519190  All  Other  Information  Services  (Feb.  2004) 
 <www.  census.  gov>.  92 
 13  C.  F.  R.    121.201,  NAICS  code  519190.  93 
 U.  S.  Census  Bureau,  1997  Economic  Census,  Subject  Series:  Information,  Establishment  and  Firm  Size  (Including  Legal  Form  of  Organization),  Table  4,  NAICS  code  514199  (issued  Oct.  2000).  This  category  was 


 created  for  the  2002  Economic  Census  by  taking  a  portion  of  the  superseded  1997  category,  All  Other  Information  Services,  NAICS  code  514199.  The  data  cited  in  the  text  above  are  derived  from  the  superseded  category. 
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 E.  Steps  Taken  to  Minimize  Significant  Economic  Impact  on  Small  Entities,  and  Significant  Alternatives  Considered 
 31.  The  RFA  requires  an  agency  to  describe  any  significant  alternatives  that  it  has  considered  in  reaching  its  proposed  approach,  which  may  include  (among  others)  the  following  four  alternatives:  (1)  the 
 establishment  of  differing  compliance  or  reporting  requirements  or  timetables  that  take  into  account  the  resources  available  to  small  entities;  (2)  the  clarification,  consolidation,  or  simplification  of  compliance  or 
 reporting  requirements  under  the  rule  for  small  entities;  (3)  the  use  of  performance,  rather  than  design,  standards;  and  (4)  an  exemption  from  coverage  of  the  rule,  or  any  part  thereof,  for  small  entities.  94 


 32.  The  need  for  the  regulations  adopted  herein  is  mandated  by  Federal  legislation.  In  the  Second  R&  O,  we  find  that,  under  the  express  terms  of  the  CALEA  statute,  all  carriers  subject  to  CALEA  are  obliged 
 to  become  CALEA-  compliant  without  exception.  However,  in  the  previously-  issued  Further  Notice  of  Proposed  Rulemaking  in  this  proceeding  (a  companion  document  to  the  First  R&  O),  we  are  considering  two 
 alternatives:  (1)  exempting  from  CALEA  certain  classes  or  categories  of  facilities-  based  broadband  Internet  access  providers    notably  small  and  rural  providers  and  providers  of  broadband  networks  for  educational 
 and  research  institutions,  and  (2)  requiring  something  less  than  full  CALEA  compliance  for  certain  classes  or  categories  of  providers,  including  smaller  providers.  95 


 33.  In  the  Second  R&  O,  we  find  that,  within  90  days  of  the  effective  date  of  the  Second  R&  O,  facilities-  based  broadband  Internet  access  providers  and  providers  of  interconnected  VoIP  who  were  newly-identified 
 in  the  First  R&  O  as  subject  to  CALEA  must  submit  system  security  statements  to  the  Commission.  Ensuring  that  any  interception  of  a  carriers  communications  or  access  to  call-  identifying  information  can  be 
 activated  only  in  accordance  with  a  court  order  or  other  lawful  authorization  and  with  the  affirmative  intervention  of  an  employee  of  the  carrier  acting  in  accordance  with  regulations  prescribed  by  the 
 Commission  is  required  by  section  105  of  CALEA  and  section  229(  b)  of  the  Communications  Act.  96  Further,  system  security  compliance  within  90  days  is  specified  for  telecommunications  carriers  in  section  64.2105  of 
 the  Commissions  rules.  97  While  we  considered  the  alternative  of  modifying  this  90-  day  compliance  period  for  facilities-  based  broadband  Internet  access  providers  and  providers  of  interconnected  VoIP  who  were 
 newly-  identified  in  the  First  R&  O  as  subject  to  CALEA,  we  concluded  that  would  result  in  disparate  treatment  of  these  newly-  identified  providers. 


 34.  In  the  Second  R&  O,  we  also  find  that  sections  107(  c)  and  109(  b)  of  CALEA  provide  only  limited  and  temporary  relief  from  compliance  requirements,  and  that  they  are  complementary  provisions  that 
 serve  different  purposes,  which  are,  respectively:  (1)  extension  of  the  CALEA  section  103  compliance  deadline;  and,  (2)  recovery  of  CALEA-  imposed  costs.  We  considered  the  alternative  of  a  less  stringent 
 interpretation  of  these  two  sections,  but  concluded  that,  in  designing  them,  Congress  carefully  balanced  a  reasonable  compliance  period  against  a  firm  deadline.  Accordingly,  we  conclude  that  the  statutory  language  does 
 not  permit  us  to  adopt  a  less  stringent  interpretation.  However,  we  note  that  section  109(  b)  lists  11  criteria  for  determining  whether  CALEA  compliance  is  reasonably  achievable  by  a  particular  telecommunications  carrier, 
 and  one  of  these  criteria  is  [  t]  he  financial  resources  of  the  telecommunications  carrier.  98  Accordingly,  small 


 94  5  U.  S.  C.    603(  c). 
 95  First  R&  O  at  20  FCC  Rcd  15013-  14,  paras.  48-  52. 
 96  47  U.  S.  C.    1004  and  229(  b),  respectively. 
 97  47  C.  F.  R.    64.2105.  We  note  that  this  section  of  the  rules  is  herein  being  transferred  to  section  1.20005, 
 47  C.  F.  R.    1.20005.  98 
 47  U.  S.  C.    1008(  b)(  1)(  H). 
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 carriers  may  petition  for  relief  under  this  CALEA  section,  thus  possibly  mitigating  ,  in  some  cases,  the  economic  burden  of  compliance  with  rules  adopted  herein. 
 35.  In  the  Second  R&  O,  we  also  find  that,  in  addition  to  the  enforcement  remedies  through  the  courts  available  to  LEAs  under  CALEA  section  108,  we  may  take  separate  enforcement  action  under  section 
 229(  a)  of  the  Communications  Act  against  carriers  that  fail  to  comply  with  the  CALEA  statute.  We  considered  an  alternative,  recommended  by  some  commenters,  that  authority  to  enforce  CALEA  lies  exclusively 
 with  the  courts,  but  we  conclude  that  we  have  the  authority  to  prescribe  CALEA  rules  and  investigate  the  compliance  of  those  carriers  and  providers  subject  to  such  rules.  We  also  conclude  that  there  should  be  no 
 disparate  treatment  of  small  entities  with  regard  to  CALEA  enforcement  because  this  would  be  inconsistent  with  the  statute. 


 36.  Finally,  in  the  Second  R&  O,  we  find  that  carriers  must  generally  pay  for  CALEA  development  and  implementation  costs  incurred  after  January  1,  1995,  but  we  acknowledge  that  they  may  recover  costs 
 from  other  sources,  such  as  from  their  subscribers.  Some  commenters  argue  that  carriers  with  small  subscriber  bases  are  less  able  to  bear  the  costs  of  CALEA  implementation;  however,  to  the  extent  CALEA 
 costs  prohibit  these  carriers  from  reasonably  achieving  CALEA  compliance,  we  again  note  that  CALEA  section  109(  b)  provides  a  remedy.  99  The  carriers  can  seek  a  determination  from  the  Commission  that 
 CALEA  compliance  is  not  reasonably  achievable,  and,  upon  such  a  determination,  the  Attorney  General  may  agree  to  pay  the  costs  of  compliance  for  these  carriers,  or  the  carriers  will  be  deemed  to  be  in  compliance.  100 
 We  believe  our  approach  represents  a  reasonable  accommodation  for  small  carriers. 
 F.  Report  to  Congress 
 37.  The  Commission  will  send  a  copy  of  the  Second  R&  O  and  MO&  O,  including  this  FRFA,  in  a  report  to  be  sent  to  Congress  and  the  Government  Accountability  Office  pursuant  to  the  Congressional 
 Review  Act.  101  In  addition,  the  Commission  will  send  a  copy  of  the  Second  R&  O  and  MO&  O  and  FRFA  to  the  Chief  Counsel  for  Advocacy  of  the  SBA.  A  copy  of  the  Second  R&  O  and  MO&  O  and  FRFA  (or 
 summaries  thereof)  will  also  be  published  in  the  Federal  Register.  102 


 99  47  U.  S.  C.    1008(  b). 
 100  47  U.  S.  C.    1008(  b)(  2). 
 101  See  5  U.  S.  C.    801(  a)(  1)(  A). 
 102  See  5  U.  S.  C.    604(  b). 
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 As  mentioned  above,  J-  STD-  025-  B  refers  to  ATIS  standard  T1.678  for  providing  LEAs  with  access  to  call-  identifying  information  on  voice  over  packet  services  provided  over  wireline.  In 
 addition,  J-  STD-  025-  B  refers  to  international  standards  aligned  with  ATIS  standard  T1.724  for  providing  LEAs  with  access  to  call-  identifying  information  on  both  Internet  access  and  voice  over 
 packet  using  UMTS  wireless  technology. 
 (2)  Cable  Television  Laboratories  (CableLabs)  specification  112 
 As  discussed  in  the  Notice,  CableLabs,  starting  in  1999,  has  issued  specifications  for  lawfully  authorized  electronic  surveillance  for  cable  operators  using  systems  compliant  with  CableLabs 


 PacketCable  TM  13  specifications  for  multi-  media  services  such  as  IP  telephony.  113  Version  I01  of  the  PacketCable  TM  1.5  Electronic  Surveillance  Specification  (PKT-  SP-  ESP1.5-  I01-  050128)  was  released 
 on  January  28,  2005  and  is  the  latest  specification,  superseding  all  previous  documents.  114 


 112  CableLabs  is  a  trademark  of  Cable  Television  Laboratories,  Inc. 
 113  Notice  at  15766-  67. 
 114  CableLabs  has  continued  to  work  with  LEAs  to  improve  its  specifications  for  lawfully  authorized  electronic 
 surveillance.  As  discussed  in  the  Notice  (at  15766-  67),  Version  I01  of  the  PacketCable  TM  Electronic  Surveillance  Specification  (PKT-  SP-  ESP-  I01-  991229)  was  released  on  December  29  th  ,  1999.  Version  I02  was  issued  on  August 


 1,  2003.  Based  on  FBI  input,  Version  I03  was  released  on  January  13  th  ,  2004.  Version  104  was  released  on  July  23  rd  ,  2004.  The  FBI  has  continued  to  work  with  the  CableLabs  team,  resulting  in  the  current  ESP1.5-  I01  release. 
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 APPENDIX  E  SECTION  109(  B)(  1)  PETITIONS  FOR  COST-  SHIFTING  RELIEF: 
 FILING  INSTRUCTIONS 
 I.  PURPOSE 
 CALEA  section  109(  b)  permits  a  telecommunications  carrier  covered  by  CALEA  to  file  a  petition  with  the  FCC  and  an  application  with  the  Department  of  Justice  (DOJ)  to  request  that  DOJ  pay  the  costs 
 of  the  carriers  CALEA  compliance  (cost-  shifting  relief)  with  respect  to  any  equipment,  facility  or  service  installed  or  deployed  after  January  1,  1995.  First,  the  carrier  must  file  a  section  109(  b)(  1)  petition  with 
 the  FCC  and  prove  that,  based  on  one  or  more  of  the  criteria  set  forth  in  section  109(  b)(  1)(  A)-(  K),  implementation  of  at  least  one  particular  solution  that  would  comply  with  a  particular  section  103 
 capability  requirement  is  not  reasonably  achievable.  The  filing  instructions  for  this  section  109(  b)(  1)  petition  are  set  forth  in  this  appendix.  Second,  if  the  Commission  grants  a  section  109(  b)(  1)  petition,  the 
 carrier  must  then  apply  to  DOJ,  pursuant  to  section  109(  b)(  2),  to  pay  the  reasonable  costs  of  compliance  for  one  of  the  solutions  proposed  in  the  section  109(  b)(  1)  petition.  DOJ  may  then  either  pay  the 
 reasonable  costs  of  compliance  or  deny  the  application.  If  DOJ  denies  the  section  109(  b)(  2)  application,  then  the  carrier  is  deemed  to  be  CALEA  compliant  for  the  facilities,  networks,  and  services  (services) 
 described  in  the  section  109(  b)(  1)  petition  until  those  services  are  replaced,  significantly  upgraded  or  otherwise  undergo  a  major  modification. 


 II.  EFFECT  OF  FILING 
 The  Commission  shall  rule  on  the  petition  within  one  year  after  the  date  such  petition  was  filed.  The  filing  of  a  petition  does  not  toll  the  effective  date  that  a  carrier  must  become  CALEA-  compliant  or 
 shield  a  carrier  from  CALEA  enforcement  by  law  enforcement. 
 III.  FILING  INSTRUCTIONS  AND  PROCEDURES 
 A.  Where  to  File  and  Number  of  Copies 
 All  petitioners  must  file  an  original  and  two  copies  addressed  to: 
 Secretary  Federal  Communications  Commission 
 ATTN:  CALEA  109(  b)(  1)  445  12th  Street,  S.  W. 
 Washington,  D.  C.  20554 


 B.  Filing  Copies  with  the  FBI 
 A  carrier  shall  also  send  one  copy  of  the  petition  to: 
 CALEA  Implementation  Unit  14800  Conference  Center  Drive,  Suite  300 
 Chantilly,  Virginia  20151-  0450. 
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 C.  Confidentiality  Process 
 All  filings,  orders  and  any  other  information  provided  in  a  section  109(  b)(  1)  proceeding  shall  be  treated  as  presumptively  confidential  pursuant  to  section  0.457(  g)  of  the  Commissions  rules,  115  and  must 
 be  filed  under  seal  by  the  petitioner.  Petitioners  must  mark  the  top  of  each  page  of  their  petitions:  Confidential    Not  for  Public  Inspection.  Persons  seeking  access  to  any  information  from  a  section 
 109(  b)(  1)  proceeding  must  request  such  access  pursuant  to  section  0.461  of  the  Commissions  rules.  116 
 IV.  Required  Petitioner  Identification  Information 
 A.  Name  of  carrier,  address,  and  name  of  carrier  contact  person. 
 B.  Form  499A  file  number  for  petitioner  (if  applicable). 
 C.  Petitioner  FCC  Registration  Number  and/  or  Tax  Payer  Identification  Number. 
 D.  The  information  required  in  paragraphs  A-  C  shall  be  provided  on  page  one  of  the  petition. 


 V.  FORMAT  OF  SECTION  109(  b)(  1)  PETITIONS 
 A.  Include  an  executive  summary  at  the  beginning  of  each  petition  that,  in  one  to  two  paragraphs  only,  summarizes  the  petitioners  arguments. 


 B.  Include  a  Table  of  Contents  that  clearly  indicates  to  the  reader  where  to  find  the  (1)  facilities,  networks,  and  services  (services)  at  issue,  (2)  the  CALEA  section  103  capability  requirement(  s) 
 at  issue,  (3)  the  petitioners  proposed  solution(  s),  including  a  cost  analysis  of  the  solution(  s),  to  satisfy  the  section  103  capability  requirement(  s)  at  issue,  (4)  the  section  109(  b)(  1)  criterion  under  which  the 
 petitioner  will  argue  that  compliance  is  not  reasonably  achievable,  and  (5)  petitioners  due  diligence  showing. 


 VI.  CONTENT  OF  SECTION  109(  b)(  1)  PETITIONS 
 A.  Identification  Of  Specific  Facilities,  Networks  And  Services  (Services)  And  CALEA  Section  103  Capability  Requirements 


 1.  Identify  the  facilities,  networks,  and  services  (services)  that  are  the  subject  of  the  petition. 
 2.  Identify  which  CALEA  section  103  capability  requirement(  s)  is  the  subject  of  the  petition. 


 B.  Identification  Of  A  Solution  Or  Solutions  That,  If  Implemented,  Would  Make  The 
 115  47  C.  F.  R.    0.457(  g). 
 116  47  C.  F.  R.    0.461. 
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 Service  At  Issue  Compliant  With  The  Applicable  CALEA  Section  103  Capability  Requirement(  s) 
 1.  The  petition  must  present  at  least  one  solution  for  which  the  petitioner  argues  the  costs  should  be  shifted  to  DOJ.  The  petition  must  include  evidence  that  the  petitioner  engaged  in  due  diligence 
 to  identify  a  reasonably  achievable  solution,  but  that,  despite  this  due  diligence,  the  solution  or  solutions  presented  in  the  petition  are  not  reasonably  achievable  by  the  petitioner.  This  due  diligence  standard  is 
 set  forth  in  more  detail  in  Section  III.  B.  2.  c.  of  this  Second  R&  O.  At  a  minimum,  a  petitioner  must  present  evidence  of  a  specific  CALEA  solution,  of  the  petitioners  due  diligence  efforts  to  make  this  solution 
 reasonably  achievable,  and  how  the  petitioner  ultimately  determined  that  it  could  not  implement  the  specified  CALEA  solution  without  incurring  significant  difficulty  or  expense.  To  the  extent  more  than 
 one  CALEA  solution  is  available,  the  petitioner  must  identify  each  of  these  solutions  and  demonstrate  that  petitioner  exercised  due  diligence  in  examining  each  of  those  solutions  and  why  it  determined  that 
 none  of  them  was  reasonably  achievable. 
 2.  Due  diligence  will  be  measured  by  a  carriers  resources,  and  the  number  of  solutions  a  carrier  should  present  in  its  petition  shall  be  proportionate  to  the  amount  of  a  carriers  resources.  Due  to 
 their  greater  resources,  larger  carriers  shall  be  expected  to  examine  and  propose  more  solutions  in  their  petitions  in  order  to  demonstrate  that  the  costs  of  a  CALEA  solution  are  not  reasonably  achievable  for 
 those  carriers  and  therefore  should  be  shifted  to  DOJ.  Smaller  carriers  need  not  examine  as  many  solutions  in  their  petitions,  but  must  examine  as  many  solutions  as  their  resources  permit. 


 3.  To  the  extent  that  other  solutions  exist  in  the  marketplace,  such  as  a  solution  offered  by  a  third-  party  provider,  that  are  less  expensive  than  the  solutions  proffered  in  a  petition,  the  petitioner  must 
 explain  why  the  less  expensive  solutions  are  not  reasonably  achievable  pursuant  to  a  cost  analysis,  as  described  in  more  detail  below. 


 C.  Special  Instructions  for  Packet  Services  Claims  of  Not  Reasonably  Achievable 
 1.  Identify  each  packet  service  to  be  covered  by  this  petition  and  the  date  that  service  was  initially  offered  to  the  public. 


 2.  For  each  packet  service,  identify  and  list  all  intercept  access  points  to  which  this  petition  applies.  (These  should  be  the  intercept  access  points  associated  with  the  least  cost  solution,  as  discussed 
 in  paragraphs  4-  5  below.)  Provide  the  name  of  the  manufacturer,  the  model,  and  the  type  of  network  equipment  (e.  g.,  router,  DSLAM,  ATM  switch,  soft  switch,  SIP  server,  or  IP-  PSTN  gateway,  CMTS 
 (cable  modem  termination  system),  CMS  (call  management  system),  media  gateway,  or  media  gateway  controller)  currently  in  use  at  each  access  point.  Also  provide  the  date  of  initial  installation  of  the 
 equipment  in  the  service  provider's  network,  the  generic  software  release  currently  loaded  on  the  equipment  and  the  date  of  its  installation  in  the  service  providers  network. 


 Description  of  Alternative  CALEA  Solutions  and  Cost  Analysis 
 3.  For  each  packet  service,  identify  the  applicable  industry  surveillance  standards  or  specifications  (e.  g.,  TIA  J-  STD-  025-  A,  TIA  J-  STD-  025-  B,  ANSI  T1.678,  ANSI  T1.724,  and 
 PACKETCABLE  PKT-  SP-  ESP1.5-  I01-  050128)  to  which  the  service  provider  intends  to  conform.  If  no  applicable  standard  exists,  and  the  service  provider  intends  to  implement  a  custom  solution,  indicate 
 custom  solution  and  go  to  4,  below. 
 4.  For  each  packet  service,  identify  and  describe  each  CALEA  solution  the  service  provider  has  considered.  As  part  of  the  discussion  of  each  solution,  describe  the  type  and  function(  s)  of  network 
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 equipment  used  at  the  intercept  access  points,  and  provide  a  count  of  such  equipment  by  manufacturer  name  and  model.  Also,  include  a  discussion  and  count  of  equipment  or  software  upgrades  and  additional 
 components  such  as  mediation  devices  and/  or  probes  that  are  required  to  implement  each  solution.  Indicate  if  solutions  involve  the  use  of  a  trusted  third  party  CALEA  service  provider,  association  or 
 cooperative,  and  identify  the  functions  the  third  party  provider  is  expected  to  perform.  Identify  the  least  expensive  solution  or  solutions. 


 5.  Provide  estimates  of  the  capital  cost  (i.  e.,  the  engineered,  furnished,  and  installed  (  EF&  I)  costs  of  hardware  and  software)  of  implementing  each  considered  solution  in  the  service 
 provider's  network.  Where  applicable,  include  the  estimated  costs  of  using  a  third  party  CALEA  service  provider.  Support  cost  estimates  with  manufacturer/  third  party  provider  documentation.  Also  provide 
 estimates  of  operations  costs.  Demonstrate  how  each  estimate  was  derived  in  a  manner  that  permits  the  results  to  be  verified  and  duplicated.  Provide  a  detailed  cost  estimate  for  the  least  expensive  solution,  and 
 enough  information  regarding  the  other  solutions  to  verify  that  they  are  not  the  least  expensive  solutions.  117  Express  the  estimated  total  cost  of  each  alternative  solution  in  terms  of  one-  time  costs  plus 
 recurring  costs  for  a  specified  number  of  years.  Calculate  the  present  value  of  each  alternative  in  todays  (date  of  petition)  dollars.  State  the  discount  rate  used  and  the  rationale  for  its  selection,  and  the  length  of 
 the  study  period. 
 D.  Special  Instructions  for  Circuit  Services  Claims  of  Not  Reasonably  Achievable 
 1.  The  petition  should  identify,  where  applicable: 
 a.  The  date  the  switch  was  initially  installed  in  the  service  provider's  network  and  the  installation  date  of  the  most  recent  software  generic;  and 


 b.  The  identity  of  the  carriers  switching  equipment  (by  manufacturer;  type  and  model;  software  version  or  generic  currently  operating;  and  Common  Language  Location 
 Identification  (CLLI)  Code  and  geographic  areas  served). 


 Description  of  Alternative  CALEA  Solutions  and  Cost  Analysis 
 2.  Describe  each  CALEA  solution  the  service  provider  has  considered  and  identify  the  least  expensive  solution(  s).  For  each  solution  considered,  include  a  discussion  and  count  of  required 
 equipment  or  software  upgrades  and  additional  components  such  as  adjunct  processors  that  are  required  to  implement  section  103  assistance  capabilities.  118  Indicate  if  the  solutions  involve  the  use  of  a  trusted  third 
 party  CALEA  service  provider,  association  or  cooperative,  and  the  functions  the  third  party  provider  is  expected  to  perform. 


 3.  Provide  estimates  of  the  capital  cost  (i.  e.,  the  engineered,  furnished,  and  installed  (  EF&  I)  costs  of  hardware  and/  or  software)  of  implementing  each  solution  described  above  in  the 
 service  provider's  network.  Where  applicable,  include  the  estimated  costs  of  using  a  trusted  third  party  CALEA  service  provider.  Support  all  estimates  with  manufacturer/  third  party  service  provider 


 117  For  example,  two  solutions  may  have  intercept  access  points  at  the  same  physical  location.  However,  the  first 
 solution  may  require  the  installation  of  a  $10,000  probe  at  each  access  point,  while  the  second  solution  may  require  the  installation  of  software  at  each  access  point  at  the  cost  of  $3000  per  access  point.  Assuming  all  other  costs  are 


 the  same  for  the  two  solutions,  the  software  solution  is  clearly  the  lower  cost.  118 
 47  U.  S.  C.    1002.  See  also  Lawfully  Authorized  Electronic  Surveillance  Joint  Standard,  J-  STD-  025-  B  (TIA  December,  2003). 
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 documentation.  Also  provide  estimates  of  operations  costs  for  each  solution.  Demonstrate  how  each  estimate  was  derived  in  a  manner  that  permits  the  results  to  be  verified  and  duplicated.  Provide  a  detailed 
 cost  estimate  for  the  least  expensive  solution,  and  enough  information  regarding  the  other  solutions  to  demonstrate  that  they  are  not  the  least  expensive  solution.  119  Express  the  estimated  total  cost  of  each 
 alternative  solution  in  terms  of  one-  time  costs  plus  recurring  costs  for  a  specified  number  of  years.  Calculate  the  present  value  of  each  alternative  in  todays  (date  of  petition)  dollars.  State  the  discount  rate 
 used  and  the  rationale  for  its  selection,  and  the  length  of  the  study  period. 
 E.  Arguments  That  CALEA  Compliance  Is  Not  Reasonably  Achievable  On  Grounds  Of  Cost 


 1.  Explain  and  produce  evidence  how  the  identified  solution  or,  in  the  case  of  multiple  solutions,  how  all  solutions  would  impose  a  significant  difficulty  or  expense  on  the  petitioner  as  that 
 phrase  is  defined  in  the  eleven  statutory  criteria  set  forth  in  CALEA  section  109(  b)(  1)(  A)-(  K).  See  paragraph  54  of  this  Second  R&  O  for  further  guidance  on  these  eleven  statutory  criteria.  All  arguments 
 must  clearly  identify  and  relate  to  one  of  these  eleven  statutory  criteria. 
 2.  If  petitioner  argues  that  the  least  expensive  solution  or  solutions  imposes  a  significant  expense,  indicate  the  impact  of  implementing  the  least  expensive  solution  by  providing  the  number  of 
 packet  customers  and  the  number  of  circuit  customers  served  by  the  service  provider  in  each  of  the  past  five  years,  and  by  comparing  the  estimated  total  cost  of  the  least  cost  CALEA  solution  to  the  service 
 provider's  capital  budget  for  the  next  five  years.  Costs  must  be  stringently  documented.  See  Section  III.  D.  of  this  Second  R&  O  for  further  guidance  on  cost  issues  and  requirements  for  documentation. 


 3.  Identify  the  resources  available  to  the  carrier  to  attain  CALEA  compliance  for  each  service  listed  in  the  petition.  Examples  of  resources  include  estimates  for  capital  expenditures  approved, 
 rejected  or  modified  by  the  state  regulatory  authorities,  the  petitioners  capital  budget,  and  long-  term  capital  requirements  projected  by  the  petitioner.  Explain  how  the  petitioner  introduced  CALEA 
 compliance  costs  into  its  network  planning  product  development  cycle. 
 4.  Identify  efforts  by  the  petitioner  to  obtain  additional  resources  to  become  CALEA  compliant.  Examples  of  evidence  of  these  efforts  include  petitions  filed  by  a  carrier  with  the  state  public 
 utility  commission  to  add  CALEA  compliance  costs  to  the  revenue  requirement  if  the  carrier  is  subject  to  rate  of  return  regulation,  or  petitions  to  add  CALEA  compliance  costs  to  the  exogenous  cost  category  if 
 the  carrier  is  subject  to  price  cap  regulation.  Further  examples  could  include  efforts  to  obtain  funding  from  the  federal  Rural  Utility  Service  (RUS)  from  private  sources. 


 5.  Provide  the  number  of  non-  CALEA  law  enforcement  requests  received  by  the  carrier  in  each  of  the  last  five  years  for  the  following:  (a)  packet-  mode  content  wiretaps;  (b)  circuit-  mode  content 
 wiretaps;  (c)  packet-  mode  pen  register  and  trap-  and-  trace  wiretaps;  and  (d)  circuit-  mode  pen  register  and  trap  and  trace  wiretaps.  In  addition,  provide  the  number  of  CALEA  law  enforcement  requests  received  by 
 the  carrier  in  each  of  the  last  three  years  for  the  following:  (a)  packet-  mode  content  wiretaps;  (b)  circuit-mode  content  wiretaps;  (c)  packet-  mode  pen  register  and  trap-  and-  trace  wiretaps;  and  (d)  circuit-  mode 
 pen  register  and  trap-  and-  trace  wiretaps. 


 119  For  example,  two  solutions  may  have  intercept  access  points  at  the  same  physical  location.  However,  the  first 
 solution  may  require  the  installation  of  a  $10,000  probe  at  each  access  point,  while  the  second  solution  may  require  the  installation  of  software  at  each  access  point  at  the  cost  of  $3000  per  access  point.  Assuming  all  other  costs  are 


 the  same  for  the  two  solutions,  the  software  solution  is  clearly  the  lower  cost. 
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 F.  Arguments  that  CALEA  Compliance  Is  Not  Reasonably  Achievable  On  Grounds  Other  Than  Cost 
 1.  If  petitioner  seeks  relief  on  grounds  other  than  cost,  petitioner  must  produce  verified  evidence  to  support  an  argument  that  it  is  entitled  to  relief  under  any  of  the  non-  cost  criteria  of  paragraphs  (A) 
 to  (K)  of  section  109(  b)(  1),  as  further  explained  in  paragraph  54  of  this  Second  R&  O. 
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 APPENDIX  F  SECTION  107(  C)  PETITIONS  FOR  EXTENSIONS  OF  TIME: 
 FILING  INSTRUCTIONS 


 I.  Purpose  and  Scope 
 CALEA  section  107(  c)(  1)  permits  a  petitioner  to  apply  for  an  extension  of  time,  up  to  two  years  from  the  date  that  the  petition  is  filed,  to  come  into  compliance  with  a  particular  CALEA  section  103 
 capability  requirement. 
 Under  section  107(  c)(  1),  a  petitioner  may  seek  an  extension  of  time  only  for  equipment,  facilities,  or  services  (  services)  installed  or  deployed  prior  to  October  25,  1998. 


 II.  Effect  of  Filing 
 A  section  107(  c)(  1)  extension  petition  shall  be  deemed  provisionally  granted  for  two  years  unless  the  Commission  rules  otherwise.  The  filing  of  a  section  107(  c)(  1)  petition  tolls  the  deadline  for  CALEA 
 compliance. 
 III.  Filing  Instructions  and  Procedures 
 A.  Where  to  File  and  Number  of  Copies 
 The  petitioner  shall  file  one  original  petition  and  two  copies  with  the: 
 Secretary  Federal  Communications  Commission 
 ATTN:  CALEA  107(  c)(  1)  445  12th  Street,  S.  W. 
 Washington,  D.  C.  20554 


 B.  File  One  Copy  With  The  FBI 
 The  petitioner,  whether  or  not  it  chooses  to  participate  in  the  FBI  CALEA  Implementation  Units  Flexible  Deployment  Program,  shall  at  the  same  time  send  one  copy  of  its  FCC  petition  and  one  copy  of 
 any  other  documents  that  it  files  in  that  FCC  petitions  docket  to: 


 CALEA  Implementation  Unit  14800  Conference  Center  Drive,  Suite  300 
 Chantilly,  Virginia  20151-  0450 


 C.  Letters  To  And  From  The  FBIs  CALEA  Implementation  Unit  Must  Be  Filed  With  The  FCC 
 If  the  petitioner  applies  to  participate  in  the  FBIs  Flexible  Deployment  Program,  the  petitioner  shall  attach  a  copy  of  the  Flexible  Deployment  Template  required  by  the  FBI  to  its  FCC  petition.  In 
 addition,  the  petitioner  shall  file  copies  of  the  Receipt  Notification  Letter  and  either  the  Letter  of  Support  or  Letter  of  Non-  support  that  it  receives  from  the  FBI  with  the  FCC  pursuant  to  the  instructions  in 
 paragraph  A  above.  For  instructions  on  how  to  participate  in  the  FBIs  Flexible  Deployment  Program,  see  http://  askcalea.  net/  docs/  flexguide4.  pdf  (last  visited  in  May  2006). 
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 D.  Confidentiality  Process 
 All  filings,  orders  and  any  other  information  provided  in  a  section  107(  c)(  1)  proceeding  shall  be  treated  as  presumptively  confidential  pursuant  to  section  0.457(  g)  of  the  Commissions  rules,  120  and  must 
 be  filed  under  seal  by  the  petitioner.  Petitioners  must  mark  the  top  of  each  page  of  their  petitions:  Confidential    Not  for  Public  Inspection.  Persons  seeking  access  to  any  information  from  a  section 
 107(  c)(  1)  proceeding  must  request  such  access  pursuant  to  section  0.461  of  the  Commissions  rules.  121 
 IV.  Required  Petitioner  Identification  Information 
 A.  Name  of  carrier,  address,  and  name  of  carrier  contact  person. 
 B.  Form  499A  file  number  for  petitioner  (if  applicable). 
 C.  Petitioner  FCC  Registration  Number  (  FRN). 
 D.  The  information  required  in  paragraphs  A-  C  shall  be  provided  on  page  one  of  the  petition. 


 V.  FORMAT  OF  SECTION  107  PETITIONS 
 A.  Include  an  executive  summary  at  the  beginning  of  each  petition  that,  in  one  to  two  paragraphs  only,  summarizes  the  petitioners  arguments. 


 B.  Include  a  Table  of  Contents  that  clearly  indicates  to  the  reader  where  to  find  the  (1)  specific  facilities,  services  and  equipment  at  issue,  (2)  capability  requirements  at  issue,  (3)  arguments 
 why  the  petitioner  needs  an  extension  of  time,  (4)  proposed  solution,  including  a  cost  analysis,  and  (5)  petitioners  due  diligence  showing. 


 VI.  CONTENT  OF  SECTION  107  PETITIONS 
 A.  Identification  of  Equipment,  Facilities,  and  Services;  CALEA  Section  103  Capability  Requirement;  and  Compliance  Date 


 1.  Identify  the  equipment,  facility  or  service  (  service)  that  is  the  subject  of  the  petition. 
 2.  Certify  that  the  service  was  deployed  prior  to  October  25,  1998. 
 3.  Identify  which  CALEA  section  103  capability  requirement  (or  requirements)  is  the  subject  of  the  petition. 


 120  47  C.  F.  R.    0.457(  g). 
 121  47  C.  F.  R.    0.461. 
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 4.  Identify  the  date,  not  to  exceed  two  years  from  the  date  that  the  petition  is  filed,  that  the  service  at  issue  in  the  petition  will  be  compliant  with  the  applicable  CALEA  section  103  capability 
 requirements.  122 
 B.  Evidence 
 1.  A  petitioner  must  support  all  assertions  with  evidence,  either  in  the  form  of  documents  or  in  signed  declarations. 


 C.  Circuit  Services 
 1.  The  petition  should  identify,  where  applicable: 
 a.  The  date  the  switch  was  initially  installed  in  the  service  provider's  network  and  the  installation  date  of  the  most  recent  software  generic;  and 


 b.  The  identity  of  the  carriers  switching  equipment  (by  manufacturer;  type  and  model;  software  version  or  generic  currently  operating;  and  Common  Language  Location  Identification 
 (CLLI)  Code  and  geographic  areas  served). 


 2.  Description  of  CALEA  Solution(  s)  and  Cost  Analysis 
 a.  Describe  the  CALEA  solution(  s)  the  service  provider  intends  to  implement  by  switch  type  (manufacturer  and  model).  Include  a  discussion  of  required  equipment  and/  or  software 
 upgrades  and  additional  components  such  as  adjunct  processors  that  are  required  to  implement  section  103  assistance  capabilities.  123  Indicate  if  the  solution(  s)  involve  the  use  of  a  third  party  CALEA  service 
 provider,  association  or  cooperative,  and  the  functions  the  third  party  provider  is  expected  to  perform. 
 b.  If  cost  is  not  a  reason  for  requiring  an  extension,  skip  this  paragraph.  Otherwise,  provide  estimates  of  the  capital  cost  (i.  e.,  the  engineered,  furnished,  and  installed  (  EF&  I)  costs  of 
 hardware  and/  or  software)  of  implementing  the  solutions  in  the  service  provider's  network,  by  switch  type.  Where  applicable,  include  the  estimated  costs  of  using  a  third  party  CALEA  service  provider. 
 Support  all  estimates  with  manufacturer/  service  provider  documentation.  Also  provide  estimates  of  operations  costs.  Demonstrate  how  each  estimate  was  derived  in  a  manner  that  permits  the  results  to  be 
 verified  and  duplicated.  Express  the  estimated  total  cost  of  each  alternative  solution  in  terms  of  one-  time  costs  plus  recurring  costs  for  a  specified  number  of  years.  Calculate  the  present  value  of  each  alternative 
 in  todays  (date  of  petition)  dollars.  State  the  discount  rate  used  and  the  rationale  for  its  selection,  and  the  length  of  the  study  period. 


 122  Although  section  107(  c)(  1)  permits  extensions  of  time  for  only  two  years,  under  certain  narrow  circumstances,  a 
 petitioner  may  indicate  in  its  petition  why  it  intends  to  file  a  second  petition  for  an  extension  of  time  at  the  conclusion  of  the  first  petitions  two-  year  extension  period. 


 123  47  U.  S.  C.    1002.  See  also  Lawfully  Authorized  Electronic  Surveillance  Joint  Standard,  J-  STD-  025-  B  (TIA 
 December,  2003). 
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 D.  Packet  Services 
 1.  For  each  packet  service  covered  by  this  extension  request,  identify  and  list  all  intercept  access  points  to  which  this  petition  applies.  Provide  the  name  of  the  manufacturer,  the  model,  and  the 
 type  of  network  equipment  (e.  g.,  router,  DSLAM,  ATM  switch,  soft  switch,  SIP  server,  or  IP-  PSTN  gateway,  CMTS  (cable  modem  termination  system),  CMS  (call  management  system),  media  gateway,  or 
 media  gateway  controller)  currently  in  use  at  each  access  point.  Also  provide  the  date  of  initial  installation  of  the  equipment  in  the  service  provider's  network,  the  generic  software  release  currently 
 loaded  on  the  equipment  and  the  date  of  its  installation  in  the  service  providers  network. 
 2.  Description  of  CALEA  Solution(  s)  and  Cost  Analysis 
 a.  For  each  packet  service  covered  by  the  extension  petition,  identify  the  applicable  industry  surveillance  standards  or  specifications  (e.  g.,  TIA  J-  STD-  025-  A,  TIA  J-  STD-  025-  B,  ANSI 
 T1.678,  ANSI  T1.724,  and  PACKETCABLE  PKT-  SP-  ESP1.5-  I01-  050128)  to  which  the  service  provider  intends  to  conform.  If  no  applicable  standard  exists,  and  the  service  provider  intends  to  implement  a 
 custom  solution,  indicate  custom  solution  and  proceed  to  the  next  paragraph. 
 b.  For  each  packet  service  identified  in  this  petition,  identify  and  describe  the  CALEA  solution  service  provider  plans  to  implement.  As  part  of  the  discussion  of  each  solution,  describe 
 the  function(  s)  of  the  network  equipment  used  at  the  intercept  access  points,  and  provide  a  count  of  such  equipment  by  manufacturer  name  and  model.  Also,  include  a  discussion  and  count  of  equipment  or 
 software  upgrades  and  additional  components  such  as  mediation  devices  and/  or  probes  that  are  required  to  implement  each  solution.  Indicate  if  a  solution  involves  the  use  of  a  trusted  third  party  CALEA  service 
 provider,  association  or  cooperative,  and  identify  the  functions  the  third  party  provider  is  expected  to  perform. 


 c.  If  cost  is  not  a  reason  for  requiring  an  extension,  skip  this  paragraph.  Otherwise,  provide  estimates  of  the  capital  cost  (i.  e.,  the  engineered,  furnished,  and  installed  (  EF&  I)  costs  of 
 hardware  and/  or  software)  of  implementing  each  solution  in  the  service  provider's  network.  Where  applicable,  include  the  estimated  costs  of  using  a  trusted  third  party  CALEA  service  provider.  Support 
 cost  estimates  with  manufacturer/  third  party  provider  documentation.  Also  provide  estimates  of  operations  costs.  Demonstrate  how  each  estimate  was  derived  in  a  manner  that  permits  the  results  to  be 
 verified  and  duplicated.  Express  the  estimated  total  cost  of  each  alternative  solution  in  terms  of  one-  time  costs  plus  recurring  costs  for  a  specified  number  of  years.  Calculate  the  present  value  of  each  alternative 
 in  todays  (date  of  petition)  dollars.  State  the  discount  rate  used  and  the  rationale  for  its  selection,  and  the  length  of  the  study  period. 


 3.  For  each  packet  service  identified  in  the  petition,  the  petition  must  include  evidence  that  third  party  solutions  were  solicited  from  all  available  vendors  and  then  compared  with  the  other  solutions 
 provided  above. 
 E.  Arguments  For  Why  Petition  Should  be  Granted 
 1.  The  petitioner  must  present  evidence  for  why  it  merits  an  extension  of  time  to  bring  the  service  at  issue  into  compliance  with  the  applicable  section  103  CALEA  capability  requirement(  s). 


 2.  If  petitioner  argues  that  it  is  entitled  to  relief  based  on  cost,  provide  detailed  and  specific  evidence  of  the  impact  of  the  cost  by  comparing  the  estimated  total  cost  of  the  CALEA  solution  to  the 
 service  provider's  capital  budget  for  the  next  five  years. 
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 3.  Provide  the  number  of  packet  customers  and  the  number  of  circuit  customers  served  by  the  service  provider  in  each  of  the  past  five  years. 
 4.  Identify  the  resources  available  to  the  carrier  to  attain  CALEA  compliance  for  each  service  listed  in  the  petition.  Examples  of  resources  include  estimates  for  capital  expenditures  approved, 
 rejected  or  modified  by  the  state  regulatory  authorities,  the  petitioners  capital  budget,  and  long-  term  capital  requirements  projected  by  the  petitioner.  Explain  how  the  petitioner  introduced  CALEA 
 compliance  costs  into  its  network  planning  product  development  cycle. 
 5.  Identify  efforts  by  the  petitioner  to  obtain  additional  resources  to  become  CALEA  compliant.  Examples  of  evidence  of  these  efforts  include  petitions  filed  by  a  carrier  with  the  state  public 
 utility  commission  to  add  CALEA  compliance  costs  to  the  revenue  requirement  if  the  carrier  is  subject  to  rate  of  return  regulation,  or  petitions  to  add  CALEA  compliance  costs  to  the  exogenous  cost  category  if 
 the  carrier  is  subject  to  price  cap  regulation.  Further  examples  could  include  efforts  to  obtain  funding  from  the  federal  Rural  Utility  Service  (RUS)  from  private  sources. 


 6.  Provide  the  number  of  non-  CALEA  law  enforcement  requests  received  by  the  carrier  in  each  of  the  last  five  years  for  the  following:  (a)  packet-  mode  content  wiretaps;  (b)  circuit-  mode  content 
 wiretaps;  (c)  packet-  mode  pen  register  and  trap-  and-  trace  wiretaps;  and  (d)  circuit-  mode  pen  register  and  trap  and  trace  wiretaps.  In  addition,  provide  the  number  of  CALEA  law  enforcement  requests  received  by 
 the  carrier  in  each  of  the  last  three  years  for  the  following:  (a)  packet-  mode  content  wiretaps;  (b)  circuit-mode  content  wiretaps;  (c)  packet-  mode  pen  register  and  trap-  and-  trace  wiretaps;  and  (d)  circuit-  mode 
 pen  register  and  trap-  and-  trace  wiretaps. 
 F.  Due  Diligence  Showing 
 1.  For  circuit  services,  petitioner  must  demonstrate  that  it  exercised  due  diligence  since  June  30,  2002,  to  achieve  a  CALEA-  compliant  solution.  124 


 2.  For  packet  services,  petitioner  must  demonstrate  that  it  exercised  due  diligence  since  November  19,  2001,  to  achieve  a  CALEA-  compliant  solution.  125 


 124  See  infra  Section  III.  B.,  para.  35  (discussing  how  this  due  diligence  showing  must  be  met). 
 125  See  infra  Section  III.  B.,  para.  37  (discussing  how  this  due  diligence  showing  must  be  met). 
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 APPENDIX  G  SAMPLE  MONITORING  REPORT  (FORM  XXX) 
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 STATEMENT  OF  CHAIRMAN  KEVIN  J.  MARTIN 
 Re:  Communications  Assistance  for  Law  Enforcement  Act  and  Broadband  Access  and  Services  (ET  Docket  No.  04-  295) 
 Enabling  law  enforcement  to  ensure  our  safety  and  security  is  of  paramount  importance.  Last  August,  the  Commission  took  an  important  step  forward  by  concluding  that  VoIP  and  facilities-  based  broadband 
 Internet  access  providers  have  CALEA  obligations,  giving  law  enforcement  the  necessary  tools  to  keep  pace  with  rapid  technological  change.  Todays  Order  provides  further  clarity  to  carriers  and  other  new 
 technology  service  providers  regarding  the  implementation  of  their  law  enforcement  obligations. 
 The  Order  we  adopt  today  is,  as  we  forecast  last  year,  a  second  step  toward  implementing  CALEA  obligations.  We  address  important  issues  under  CALEA  such  as  cost  recovery,  compliance  processes, 
 and  enforcement,  providing  further  clarity  for  entities  subject  to  CALEA  to  continue  to  work  toward  full  CALEA  compliance.  I  remain  committed  to  ensuring  that  these  providers  take  all  necessary  actions  to 
 incorporate  surveillance  capabilities  into  their  networks  in  a  timely  fashion.  Further  we  will  continue  to  work  to  address  and  overcome  any  challenges  that  stand  in  the  way  of  effective  lawful  electronic 
 surveillance. 
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 STATEMENT  OF  COMMISSIONER  MICHAEL  J.  COPPS 
 Re:  Communications  Assistance  for  Law  Enforcement  Act  and  Broadband  Access  and  Services,  Second  Report  and  Order  and  Memorandum  Opinion  and  Order  (ET 
 Docket  No.  04-  295,  RM-  10865) 
 As  I  have  often  said,  the  first  obligation  of  a  public  servant  is  the  safety  of  the  people.  In  our  case  here  at  the  FCC,  our  controlling  statute  makes  that  as  explicit  as  it  could  possibly  be  we  are  charged  to 
 make  available  .  .  .  a  rapid,  efficient,  Nation-  wide  and  world-  wide  wire  and  radio  communication  service  .  .  .  for  the  purpose  of  the  national  defense  and  for  the  purpose  of  promoting  safety  of  life  and 
 property.  The  implementation  and  oversight  of  CALEA  is  an  important  part  of  that  duty.  By  ensuring  that  law  enforcement  authorities  have  access  to  the  resources  CALEA  authorizes,  this  Commission 
 supports  efforts  to  protect  the  public  safety  and  homeland  security  of  the  United  States  and  its  people.  Because  we  have  a  responsibility  to  assist  those  whose  job  it  is  to  protect  us  from  harm,  I  support  todays 
 decision. 
 Todays  decision  addresses  a  number  of  outstanding  issues  regarding  CALEA  implementation.  The  item  cleans  up  some  of  the  ambiguities  left  open  from  our  earlier  efforts.  Notably,  we  clarify  the  role 
 that  the  experts  in  industry  standard-  setting  bodies  will  play  by  working  in  concert  with  law  enforcement  and  other  interested  parties  to  craft  technical  standards  for  critical  terms  like  call-  identifying 
 information.  This  is  truly  urgent  work,  and  I  thank  those  who  are  participating  in  the  process  and  urge  them  to  keep  this  the  top  priority  item  it  must  be  both  to  get  the  job  done  and  to  avoid  the  Commission 
 having  to  intrude  itself  in  the  process.  We  also  clarify  that  trusted  third  parties  are  a  legitimate  way  for  carriers  to  manage  their  CALEA  obligations.  The  record  shows  TTP  availability  and  capability  to 
 perform  a  number  of  services  to  advance  CALEA  compliance.  Trusted  third  party  participation  should  also  mean  more  cost-  effective  options  for  compliance,  particularly  for  smaller  carriers. 


 As  all  who  have  followed  our  CALEA  proceedings  know,  this  is  ongoing  and  difficult  work.  As  I  have  remarked  before,  the  challenge  is  complicated  by  the  Commissions  theory  of  substantial 
 replacement  that  collapsed  the  statutory  dichotomy  between  information  services  and  telecommunications  services  in  a  stretch  that  invited  time-  consuming  and  unneeded  legal  complications.  Finally,  as  this  order 
 notes,  there  is  still  clarity  to  be  provided.  For  example,  numerous  institutions  of  higher  learning  have  expressed  concern  that  language  in  our  earlier  order  could  be  read  as  extending  CALEA  obligations  to  the 
 private  networks  of  universities,  libraries  and  some  others  in  ways  possibly  at  odds  with  the  statutory  text.  All  those  agencies  and  offices  of  government  involved  in  CALEA  implementation  should  work  together 
 to  provide  clarity  here  and  to  avoid  confusion  and  potentially  significant  expenses  for  these  institutions. 


 I  commend  the  Chairman  for  his  dedication  to  law  enforcement  and  his  continuing  work  on  public  safety  and  homeland  security,  and  I  thank  the  Bureau  for  all  its  hard  work  in  getting  this  item  to  us 
 for  action  today. 
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 STATEMENT  OF  COMMISSIONER  JONATHAN  S.  ADELSTEIN 
 Re:  Communications  Assistance  for  Law  Enforcement  Act  and  Broadband  Access  and  Services,  RM-10865,  ET  Docket  04-  295,  Second  Report  and  Order  and  Memorandum  Opinion  and  Order  (May  3, 
 2006). 
 There  is  no  higher  calling  for  us  at  the  Commission  than  preserving  public  safety  and  homeland  security,  so  I  support  our  efforts  to  provide  guidance  on  the  legal  framework  for  the  Communications 
 Assistance  for  Law  Enforcement  Act  (CALEA)  and  the  obligations  of  facilities-  based  broadband  providers  and  interconnected  VoIP  providers  under  that  statute. 


 CALEA  provides  an  important  tool  for  law  enforcement  by  requiring  telecommunications  carriers  to  build  into  their  networks  technical  capabilities  to  assist  law  enforcement  with  authorized  intercepts  of 
 communications  and  call-  identifying  information.  In  August  of  last  year,  the  Commission  determined  that  facilities-  based  broadband  providers  and  interconnected  VoIP  providers  are  subject  to  CALEA.  With 
 this  Order,  we  take  additional  steps  to  meet  the  unique  needs  of  our  nations  first  responders  and  law  enforcement  officials.  I  am  particularly  encouraged  by  the  Orders  finding  that  broadband  and  VoIP 
 providers  may  use  so-  called  trusted  third  parties  to  extract  the  information  necessary  to  comply  with  CALEA,  particularly  given  the  potential  that  this  approach  holds  for  smaller  providers. 


 We  move  the  ball  forward  today,  but  there  remains  important  work  ahead  for  industry,  law  enforcement,  and  the  Commission,  alike.  Particularly  given  CALEAs  reliance  on  industry  organizations 
 to  take  a  lead  role  on  these  issue  and  the  tight  deadlines  for  compliance,  it  will  be  critical  for  all  parties  to  work  expeditiously,  creatively  and  cooperatively  if  we  are  to  meet  the  multi-  faceted  goals  of  CALEA. 
 This  Order  directs  carriers  to  file  detailed  reports  on  the  status  of  their  compliance  efforts.  I  look  forward  to  seeing  the  results  of  these  reports  so  that  we  can  track  industry  progress  and  take  any  additional  actions 
 or  address  remaining  issues  necessary. 
 I  would  like  to  thank  the  staff  from  our  Office  of  Engineering  and  Technology  and  the  Wireline  Competition  Bureau  for  their  hard  work  on  this  item.  I  look  forward  to  working  with  my  colleagues  and 
 the  broader  community  as  we  continue  our  efforts  to  faithfully  implement  CALEA. 
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 STATEMENT  OF  COMMISSIONER  DEBORAH  TAYLOR  TATE 
 Re:  Communications  Assistance  for  Law  Enforcement  Act  and  Broadband  Access  and  Services  (ET  Docket  No.  04-  295). 
 As  is  often  the  case,  we  are  called  on  by  many  parties  to  weigh  their  individual  interests  --  in  this  case  the  interest  of  the  safety  and  security  of  our  citizens  --  against  the  potential  costs  and 
 possible  difficulties  of  ensuring  that  safety.  Our  number  one  priority  at  this  point  in  our  nations  history  must  be  our  national  security    the  safety  of  every  American. 


 First,  let  me  say  that  having  worked  with  both  Vanderbilt  University  and  Belmont  University,  and  as  a  parent  of  three  college  aged  children,  I  am  loathe  to  take  any  action  that  unfairly 
 shifts  a  heavy  financial  burden  onto  students  or  parents  of  students  in  todays  colleges  and  universities.  However  concerned  I  may  be,  though,  I  am  not  persuaded  merely  by  largely  speculative  allegations  that 
 the  financial  burden  on  the  higher  education  community  could  total  billions  of  dollars.  126  Moreover,  it  is  not  sound  analysis  to  rely  on  vague  assertions  regarding  the  costs  per  student  of  CALEA  compliance  for 
 IP  services,  when  those  assertions  were  made  prior  to,  or  without  regard  to,  our  acknowledgement  that  the  use  of  a  Trusted  Third  Party  (TTP)  could  be  an  economically  feasible  alternative  to  meet  CALEAs 
 requirements.  Indeed,  one  potential  TTP  asserted  that  the  cost  per  IP  service  subscriber,  based  on  large-scale  shared  implementation  costs  could  be  as  low  as  1  cent  per  subscriber  per  month  or  less.  127 


 It  is  also  important  for  these  institutions  to  remember  what  we  have  said  about  educational  networks  compliance.  The  last  sentence  of  footnote  100  of  our  First  Report  and  Order  says: 
 To  the  extent  .  .  .  that  these  private  [educational]  networks  are  interconnected  with  a  public  network,  either  the  PSTN  or  the  Internet,  providers  of  the  facilities  that  support  the  connection  of  the  private 
 network  to  a  public  network  are  subject  to  CALEA  under  the  SRP.  This  language  means  that  although  educational  networks  generally  fall  under  CALEA's  exemption  for  private  networks,  the  facilities 
 connecting  these  private  networks  to  the  public  Internet  must  be  CALEA  compliant. 
 A  number  of  colleges  and  universities,  however,  have  expressed  concern  that  this  language  could  be  read  to  require  them  to  modify  their  entire  networks,  at  significant  expense.  We  have 
 explained  that  this  concern  is  misplaced.  Our  brief  to  the  D.  C.  Circuit  in  the  CALEA  appeal,  filed  on  February  27,  2006,  states  (at  pp.  39-  40): 


 Petitioners'  professed  fear  that  a  private  network  would  become  subject  to  CALEA  "throughout  [the]  entire  private  network"  if  the  establishment 
 creating  the  network  provided  its  own  connection  between  that  network  and  the  Internet  is  unfounded.  The  [First  Report  and  Order]  states  that 
 only  the  connection  point  between  the  private  and  public  networks  is  subject  to  CALEA.  This  is  true  whether  that  connection  point  is  provided 
 by  a  commercial  Internet  access  provider  or  by  the  private  network  operator  itself. 


 126  See  Comments  of  the  Higher  Education  Coalition,  November  14,  2005,  at  9. 
 127  Comments  of  Subsentio,  Inc.,  November  11,  2005;  see  also  Comments  of  VeriSign,  December  21,  2005,  at  4. 
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 Most  importantly,  even  if  compliance  costs  were  to  fall  on  an  educational  institution,  rather  than  the  commercial  provider  of  the  connection  point  to  the  public  switched  network,  CALEA  itself 
 allows  for  consideration  of  the  identified  costs  of  CALEA  compliance  and  financial  resources  of  a  covered  carrier  in  the  criteria  for  review  of  a  Section  109  request.  Thus  Congress,  in  crafting  CALEA, 
 provided  an  avenue  for  relief  from  potential  harm  by  making  available  section  109  relief. 
 I  understand  and  appreciate  the  concerns  of  Americas  colleges  and  universities,  but  I  am  also  mindful  of  the  balancing  of  interests  at  stake  here,  and  the  need  to  place  great  weight  on  the  factors 
 of  public  safety  and  national  security. 
 With  regard  to  clarifying  that  section  109  is  the  only  statutory  provision  under  which  carriers  can  seek  to  recover  CALEA  compliance  costs,  some  might  argue  that  traditional  switched 
 services  carriers  have  sought  to  recover  not  only  wiretap  provisioning  costs,  but  also  CALEA  capital  costs  through  individual  wiretap  charges.  The  Department  of  Justice,  however,  has  consistently  held  the 
 position  here  that  only  costs  specific  to  provisioning  the  requested  wiretap  are  recoverable  in  these  charges.  To  the  extent  that  elimination  of  CALEA  capital  costs  from  wiretap  charges  enables  law 
 enforcement  more  effectively  to  utilize  CALEA  wiretaps,  our  clarification  serves  to  further  public  safety  and  national  security  interests. 


 Finally,  I  support  the  affirmation  of  the  original  May  14,  2007  deadline  for  VoIP  and  Broadband  Internet  providers  to  become  CALEA  compliant,  as  well  as  our  finding  that  it  is  premature  for 
 this  agency  to  pre-  empt  the  ongoing  industry  process  of  developing  additional  standards  for  IP-  based  services.  There  is  no  indication  in  the  record  that  any  party  has  filed  a  deficiency  petition  under  section 
 107(  b)  of  CALEA  with  regard  to  the  developing  standards.  Moreover,  I  do  not  find  a  basis  in  the  statute  for  the  issuance  of  an  extension. 


 As  to  the  assertion  of  commenters  that  section  109(  b)  authorizes  us  to  grant  an  extension  of  the  obligation  of  carriers  to  become  CALEA  compliant,  I  do  not  think  it  is  the  FCCs  job  to  rewrite 
 the  statute  by  using  section  109(  b)  of  CALEA  to  provide  an  extension  for  equipment,  facilities,  or  services  deployed  on  or  after  October  25,  1998,  128  when  such  equipment,  facilities,  or  services  are  not 
 eligible  for  an  extension  under  section  107(  c).  Nor  am  I  convinced  that  our  broad  authority  under  229(  a),  the  provision  that  grants  us  the  authority  to  implement  CALEA,  provides  us  broader  authority  to  grant 
 extensions  than  the  specifically  limited  authority  Congress  has  stated  in  section  107(  c)  of  the  statute. 
 Congress  has  provided  clear  guidance  in  the  plain  language  of  CALEA,  and  we  must  read  CALEAs  requirements  in  a  technology  neutral  manner.  Our  action  today  is  not  expanding  the  reach  of 
 the  statute,  but  simply  clarifying  our  interpretation  of  the  statute  in  order  to  meet  its  goals  and  to  further  the  interests  of  public  safety  and  national  security. 


 128  As  noted  in  our  Order,  most  packet-  mode  technologies  were  deployed  after  section  107(  c)(  1)  s  expiration  date, 
 October  25,  1998. 
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