40694 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Notices

1Pub. L. 103–414, 108 Stat. 4279 (1994) (Title I

codified at 47 U.S.C. 1001–1010).

weapons system improvements or the

fielding of new systems.

Constance K. Robinson,

Director of Operations, Antitrust Division.

[FR Doc. 00–16606 Filed 6–29–00; 8:45 am]

BILLING CODE 4410–11–M

DEPARTMENT OF JUSTICE

Antitrust Division

Notice Pursuant to the National

Cooperative Research and Production

Act of 1993—VSI Alliance

Notice is hereby given that, on April

18, 2000, pursuant to section 6(a) of the

National Cooperative Research and

Production Act of 1993, 15 U.S.C. 4301

et seq. (‘‘the Act’’), VSI Alliance has

filed written notifications

simultaneously with the Attorney

General and the Federal Trade

Commission disclosing changes in its

membership status. The notifications

were filed for the purpose of extending

the Act’s provisions limiting the

recovery of antitrust plaintiffs to actual

damages under specific circumstances.

Specifically, Adaptive Silicon, Inc., Los

Gatos, CA; Analog Devices, Inc.,

Greensboro, NC; C Level Design, San

Jose, CA; Chronology Corp., Redmond,

WA; Circuti Semantics, Inc., San Jose,

CA; Experience First, Inc., San Jose, CA;

Dominique Houzet (individual

member), Toulouse, France; Improv

Systems, Inc., Santa Clara, CA; Jennic

Ltd., Sheffield, United Kingdom;

KITAL–Korean Institute of Technology

and the Law, Seoul, Republic of Korea;

MAGIMA, Inc., Monterey Park, CA; J.

Sukarno Mertoguno (individual

member), San Jose, CA; Pittsburgh

Digital Greenhouse, Inc., Pittsburgh, PA;

Wolfram Putzke-Roming (individual

member), Oldenburg, Germany; Silicon

Automation Systems Limited,

Bangalore, India; Simulation Magic,

Inc., Campbell, CA; SIP Consortium in

Taiwan, Taiwan; Universite Pierre et

Marie Curie, Paris, France; and Mason

Weems (individual member), Austin,

TX have been added as parties to this

venture. Also, ASIC Alliance Corp.,

Woburn, MA; ASPEC, Sunnyvale, CA;

Boulder Creek Corp., Santa Cruz, CA;

Cirrus Logic, Inc., Fremont, CA; Gigalex

Co., Ltd., Osaka, Japan; ICL High

Performance Systems, Manchester,

United Kingdom; Innovative Semi,

Mountain View, CA; Integrated

Technoloyg Express, USA, Santa Clara,

CA; iReady Corporation, Santa Clara,

CA; Isotron Corp. (formerly Desideratum

Company), Seattle, WA; Kawasaki Steel

Corp., Chiba, Japan; LEDA S.A., Meylan,

France; LEDA Systems, Inc., Plano, TX;

Neo Linear, Inc., Pittsburgh, PA; NKK

Corp., Kanagawa, Japan; Real 3D,

Orlando, FL; ROHM Co., Ltd., Kyoto,

Japan; Silicon Systems Limited, Dublin,

Ireland; Smartech Oy, Tampere,

Finland; SynTest Technologies, Inc.,

Sunnyvale, CA; TAEUS, Colorado

Springs, CO; and Tundra

Semiconductor Corp., Kanata, Ontario,

Canada have been dropped as parties to

this venture.

No other changes have been made in

either the membership or planned

activity of the group research project.

Membership in this group research

project remains open, and VSI Alliance

intends to file additional written

notification disclosing all changes in

membership.

On November 29, 1996, VSI Alliance

filed its original notification pursuant to

section 6(a) of the Act. The Department

of Justice published a notice in the

Federal Register pursuant to section

6(b) of the Act on March 4, 1997 (62 FR

9812).

The last notification was filed with

the Department on January 27, 2000. A

notice has not yet been published in the

Federal Register.

Constance K. Robinson,

Director of Operations, Antitrust Division.

[FR Doc. 00–16608 Filed 6–29–00; 8:45 am]

BILLING CODE 4410–11–M

DEPARTMENT OF JUSTICE

Federal Bureau of Investigation

Implementation of Section 104 of the

Communications Assistance for Law

Enforcement Act: Capacity

Requirements for Paging (Traditional,

Advanced Messaging, and Ancillary

Services), Mobile Satellite System, and

Analog and Digital Specialized Mobile

Radio

AGENCY: Federal Bureau of

Investigation, DOJ.

ACTION: Further notice of inquiry.

SUMMARY: The Communications

Assistance for Law Enforcement Act

(CALEA) mandates that the Attorney

General provide capacity requirements

for the actual and maximum number of

interceptions (of both call content and

call-identifying information) that

telecommunications carriers may be

required to accommodate in support of

law enforcement’s electronic

surveillance needs. On December 15,

1998, the Federal Bureau of

Investigation (FBI) released a Notice of

Inquiry (NOI) entitled ‘‘Capacity

Requirements for Telecommunications

Services Other Than Local Exchange

Services, Cellular Services, and

Broadband PCS’’ (63 FR 70160,

December 18, 1998) to obtain public

comment on the FBI’s efforts to

establish law enforcement’s capacity

requirements for services other than

local exchange services, cellular, and

broadband personal communications

services (PCS). The FBI received

comments from numerous

telecommunications carriers and

telecommunications industry

associations. After careful consideration

of the record, the FBI has decided to use

this Further Notice of Inquiry (FNOI) to

seek additional input on the various

issues related to establishing a Notice of

Capacity for only the following

telecommunications services at this

time: paging (including traditional (oneway paging), advanced messaging (e.g.,

two-way paging and roaming), and

ancillary services), mobile satellite

system (MSS), and analog specialized

mobile radio (SMR) and digital SMR

(e.g., enhanced specialized mobile radio

(ESMR)).

DATES: Comments must be received on

or before August 29, 2000.

ADDRESSES: Comments should be

submitted to the Federal Bureau of

Investigation, CALEA Implementation

Section, Attention: Further Notice of

Inquiry, 14800 Conference Center Drive,

Suite 300, Chantilly, VA 20151.

FOR FURTHER INFORMATION CONTACT:

Program Manager for Capacity, CALEA

Implementation Section, 703–814–4836

or 800–551–0336.

SUPPLEMENTARY INFORMATION:

I. Background

A. Capacity Notice Mandate

The Communications Assistance for

Law Enforcement Act (CALEA) became

law on October 25, 1994.1 It was

enacted to preserve law enforcement’s

ability to access call content and callidentifying information, pursuant to

lawful authorization, notwithstanding

technological advances in the provision

of communications services. Section

104(a)(1) of CALEA outlines the

procedure by which the Attorney

General is obligated to publish notices

of the actual and maximum capacity

requirements for simultaneous

electronic surveillance. After ‘‘notice

and comment’’ and ‘‘consulting with

State and local law enforcement

agencies, telecommunications carriers,

providers of telecommunications

support services, and manufacturers of

telecommunications equipment,’’ the

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Notices 40695

2Final Notice of Capacity, 63 FR 12220

(‘‘Capacity notices will eventually be issued

covering all telecommunications carriers.’’);

Implementation of section 104 of the

Communications Assistance for Law Enforcement

Act: Telecommunications Services Other than Local

Exchange Services, Cellular, and Broadband PCS,

Notice of Inquiry, 63 FR 70160, 70161 (1998) (NOI)

(‘‘Exclusion from the March 12, 1998 Final Notice

of Capacity of other telecommunications carriers

* * * does not exempt them from the statutory

obligations of CALEA.’’); see also Implementation

of section 104 of the Communications Assistance

for Law Enforcement Act, Second Notice and

Request for Comments, 62 FR 1902, 1904 (1997).

3Communications Assistance for Law

Enforcement, Second Report and Order, CC Docket

No. 97–213 (rel. Aug. 31, 1999) (Second Report and

Order); Communications Assistance for Law

Enforcement, Third Report and Order, CC Docket

No. 97–213 (rel. Aug. 31, 1999).

4United States Telecom Ass’n v. F.B.I., No.

1:98CV02010 (D.D.C. filed August 19, 1998). On

December 13, 1999, the Cellular

Telecommunications Industry Association, the

Personal Communications Industry Association,

and the Telecommunications Industry Association

filed a joint motion to withdraw without prejudice

from the pending lawsuit. The joint motion was

granted by the court on that same date. The United

States Telecom Association is the only remaining

plaintiff in the pending capacity litigation.

5H.R. Rep. No. 103–827, pt. 1, at 25 (1994).

6See Brock v. Pierce County, 476 U.S. 253 (1986)

(failure of agency to observe procedural

requirement represented by the word ‘‘shall’’ was

not enough to remove the Secretary’s power to act

after 120 days and does not void subsequent agency

action, especially when important public rights are

at stake); see also William G. Tadlock Constr. v.

United States Department of Defense, 91 F.3d 1335,

1341 (9th Cir. 1996) (failure to follow statutory

deadlines does not deprive the agency of

jurisdiction); Idaho Farm Bureau Fed’n v. Babbitt,

58 F.3d 1392, 1395 (9th Cir. 1995) (requirement that

Secretary ‘‘shall’’ publish proposed addition to the

list of endangered species within one year does not

proscribe listing a species as endangered after the

statutory time limit had passed); Gottlieb v. Pepa,

41 F.3d 730, 731 (D.C. Cir. 1994) (language

instructing that Secretary of Transportation ‘‘shall’’

ensure final action on correction applications is

taken within 10 months of receipt is directory

rather than mandatory); National Cable Television

Ass’n. v. Copyright Royalty Tribunal, 724 F.2d 176,

189, n.23 (D.C. Cir. 1983) (requirement tribunal

‘‘shall’’ render a decision within one year does not

make a later decision void); Marshall v. N. L. Indus.,

618 F.2d 1220, 1224–1225 (7th Cir. 1980) (failure

to meet requirement that Secretary of Labor ‘‘shall’’

make determination on employee’s complaint

within 90 days does not bar subsequent

enforcement action); Marshall v. Local Union 1374

Int’l Ass’n of Machinists & Aerospace Workers, 558

F.2d 1354 (9th Cir. 1977) (requirement that

Secretary of Labor ‘‘shall’’ bring suit within 60 days

of receiving complaint does not bar later suit).

Attorney General is required to publish

in the Federal Register notice of the

estimated actual and maximum capacity

requirements needed to accommodate

the electronic surveillance that

government agencies may conduct and

use simultaneously.

This FNOI is part of the rulemaking

process initiated pursuant to section 104

of CALEA. On March 3, 1995, the

Attorney General delegated to the

Director of the FBI, or his designee(s),

the authority to carry out the

responsibilities conferred upon the

Attorney General pursuant to section

104 of CALEA. The FBI is implementing

CALEA on behalf of all federal, state,

and local law enforcement agencies.

B. Final Notice of Capacity and Notice

of Inquiry

The FBI began the process of

implementing sec. 104 by publishing a

Final Notice of Capacity in the Federal

Register on March 12, 1998 (63 FR

12218). The Final Notice of Capacity

adopted capacity requirements for three

telecommunications services that law

enforcement viewed as its highest

priorities for implementing lawfullyauthorized interceptions. Specifically,

the Final Notice of Capacity adopted

actual and maximum capacity

requirements for local exchange

services, cellular service, and broadband

PCS. The Final Notice of Capacity stated

explicitly that other

telecommunications services besides

local exchange, cellular, and broadband

PCS would be addressed in future

Notices of Capacity.

As a continuation of the capacity

process, the NOI published in December

1998 provided commenters with an

opportunity to provide input to the FBI

as it develops law enforcement’s

capacity requirements for

telecommunications services other than

local exchange, cellular, and broadband

PCS.

C. Rationale for This FNOI

Both the Final Notice of Capacity and

the NOI discussed the FBI’s intent to

establish capacity requirements for all

telecommunications services.2 This

FNOI represents the next step in the

process of issuing Notices of Capacity

for all telecommunications services. In

response to the NOI, however, a few

commenters questioned the

appropriateness and timeliness of

proceeding with establishing capacity

requirements in light of the Federal

Communications Commission’s (FCC)

continuing CALEA implementation and

the ongoing lawsuit in federal court. In

the interim, the FCC has issued

decisions regarding CALEA that were

pending when parties filed their

comments to the NOI.3

This FNOI makes appropriate

reference to the relevant portions of

these FCC decisions insofar as they

affect this Notice of Capacity

proceeding. With respect to the ongoing

litigation,4 the lawsuit is directed

specifically at the conclusions reached

in the Final Notice of Capacity

concerning local exchange service,

cellular service, and broadband PCS.

Thus, the lawsuit does not affect the

FBI’s duty under CALEA to establish

capacity requirements for any remaining

telecommunications services.

Consequently, the FBI invites

commenters to provide further input on

the appropriate methodologies for

setting capacity requirements for paging,

Mobile Satellite System (MSS), and

Specialized Mobile Radio (SMR)

services.

A few commenters on the NOI have

asserted that the FBI is precluded from

establishing any capacity requirements

because the statutory deadline has

passed. The FBI finds this assertion to

be unpersuasive for a number of

reasons. First, despite section 104(a)(1)’s

requirement that the Attorney General

publish capacity notices within one year

after CALEA’s date of enactment, the

plain statutory language of section

104(b) clearly anticipates that this time

limit might not be met. Specifically,

section 104(b) gives telecommunications

carriers up to three years to comply with

any capacity notice published by the

government. Second, consistent with

the plain statutory language, the

legislative history of CALEA explicitly

supports the position that the section

104(a)(1) time limit does not deprive the

Attorney General of her authority to

issue capacity notices. The legislative

history clearly states, ‘‘In the event the

Attorney General publishes the notices

after the statutory time limit, carriers

will have three years thereafter to

comply, which time period will fall

after the effective date of section

(103).’’ 5 Third, there is a substantial

body of federal case law which holds

that the failure of an agency to observe

a procedural requirement does not void

subsequent agency action.6 Guided by

this precedent, the legislative history,

and the plain statutory language, the FBI

will continue the process of establishing

capacity requirements as mandated by

CALEA.

Finally, some commenters contend

that the FBI must first demonstrate a

capacity need with respect to each

telecommunications service before it

can establish capacity requirements for

that service. CALEA does not require

the FBI to conclusively demonstrate its

capacity needs with respect to a

particular telecommunications service.

Rather, section 104(a) allows the

Attorney General to estimate actual and

maximum capacity requirements which

may be based upon such considerations

as the type of equipment, type of

service, number of subscribers, type or

size of carrier, nature of service area, or

any other measure, provided that the

capacity requirements are identified, to

40696 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Notices

the maximum extent practicable, with a

specific geographic location. Thus, the

statute permits the Attorney General to

estimate reasonable actual and

maximum capacity requirements

despite the absence of historical

intercept data or a demonstrated need

with respect to a particular

telecommunications service.

II. Establishing Notice of Capacity

Requirements for Paging, MSS, and

SMR Services

A. Scope of this FNOI

The FBI notes the numerous helpful

comments that it received on the initial

NOI, all of which it carefully

considered. However, the comments

received did not provide complete

information about some of the matters

that the FBI put forth for discussion.

Also, the comments have raised

additional issues that the FBI believes

are worthy of further public discussion.

The FBI is publishing this FNOI in order

to obtain additional information so that

it can avoid setting capacity

requirements too low (which would

impair the effectiveness of CALEA) or

too high (which would place an

unnecessary burden on industry.)

In the NOI, the FBI sought comment

on ways in which capacity requirements

could be established for

telecommunications services other than

local exchange, cellular, and broadband

PCS. The NOI encouraged all carriers

that offer telecommunications services

that were not covered by the Final

Notice of Capacity to comment on the

issues raised in the NOI. To facilitate

the dialogue, the NOI set forth the

following list of eleven services that had

not been addressed in the Final Notice

of Capacity: traditional paging,

advanced messaging, ancillary services,

MSS, SMR and ESMR, national and

multi-rate services, ATM, X.25, frame

relay, airplane telephony, and railroad

telephony.

After careful consideration of the

record, the FBI has decided to use this

FNOI to seek additional input on the

various issues related to establishing a

Notice of Capacity for only the

following telecommunications services

at this time: Paging (including

traditional (one-way paging), advanced

messaging (e.g., two-way paging and

roaming), and ancillary services), MSS,

and analog and digital SMR services. At

present, it is the FBI’s priority to ensure

that providers of these types of

telecommunications services can

provide law enforcement with the

technical capacity to carry out lawfullyauthorized electronic surveillance. As

stated in the Final Notice of Capacity,

the FBI will eventually publish Notices

of Capacity for all telecommunications

services covered by CALEA.

B. Services Covered by This Notice of

Capacity Proceeding

1. Paging Services

The term ‘‘paging services’’ is used

throughout this FNOI to describe the

three most common types of paging and

messaging services: traditional one-way

paging, advanced messaging services,

and ancillary services. Traditional oneway paging refers to a category of

service offerings that include tone-only,

tone plus voice, numeric display,

alphanumeric display, and voice

message options. Advanced messaging

services allow additional features

including two-way communications

between radio transceiving devices and

roaming. Many of these services are

sometimes referred to as narrowband

PCS. Ancillary services are

connectivity-related, real-time voice

services. Ancillary services resemble

telephony services. For example,

‘‘caller/subscriber bridging’’ allows a

caller to speak to the subscriber through

the paging terminal or the paging

messaging switch, which answers calls,

places the caller on hold, pages the

subscriber, and then connects the held

calling party to the subscriber. Two

other services often included are outdial

and one-number service.

Paging services are widely deployed

throughout the United States and,

generally, have been available longer

than MSS and SMR services. Paging is

one of the most universally available

services and the industry continues to

enjoy high subscribership growth rates.

Law enforcement officials have found

that the flexible, mobile nature of the

various paging services makes these

services attractive to criminals,

especially to groups engaged in

organized criminal activities. Paging

services have traditionally been a major

intercept target for law enforcement.

2. MSS Services

MSSs are satellite systems capable of

providing voice and data services to

end-users via small, handheld or

portable mobile receiving terminals

using constellations of low earth orbit

(LEO) or middle earth orbit satellites.

Additionally, some satellite service

systems contain fixed satellite service

elements, such as satellite-based

payphones and desk-top telephones,

even though they are commonly referred

to as ‘‘mobile’’ satellite services.

MSSs provide a wide range of

services, including voice, data, video,

paging, and messaging. Also, some MSS

carriers have dual-mode user terminals

that permit users to switch between

terrestrial cellular service and MSS

service. In this FNOI, the term MSS is

meant to include those satellite entities

that provide the transmission or

switching of telecommunications

services through intersatellite links or

earth stations/gateways regardless of

whether the receiving and sending

terminals are mobile or fixed. The MSS

service subscribership rates have the

potential to increase significantly from

current levels within the next few years.

3. SMR Services

The NOI referred to the terms ‘‘SMR

and ESMR.’’ ‘‘ESMR’’ is a term used

generally to refer to digital SMR service

offerings. Relevant FCC regulations (47

CFR part 20 and part 90) use the term

‘‘SMR,’’ to include analog SMR and

digital SMR. In this FNOI, the FBI

adopts the FCC’s terminology with

respect to SMR services.

The most important distinction for

SMR services in regard to CALEA

compliancy is the difference in the

definitions of commercial mobile radio

service (CMRS) and private mobile radio

service (PMRS). In its Second Report

and Order, the FCC has held that CMRS

providers are considered to be

telecommunications carriers for the

purposes of CALEA, but PMRS

providers are not subject to CALEA

unless they offer service that qualifies as

CMRS. For purposes of CALEA, the key

factor that separates CMRS from PMRS

is interconnection to the public

switched telephone network (PSTN);

interconnected service is considered to

be CMRS, which is subject to CALEA,

whereas pure dispatch service with no

interconnection is considered to be

PMRS, which is not covered by CALEA.

SMR service is a commercial-based

telecommunications service that uses

either analog or digital technology

between mobile radio units and base

stations. SMR services are provided in

different frequency bands.

The introduction of digital SMR

services such as ‘‘push-to-talk’’

interconnected dispatch service has

attracted a new group of subscribers,

whose numbers will probably continue

to grow. Like paging and MSS services,

the mobile nature of SMR services

makes them convenient for furthering

criminal activity.

C. Possible Methodologies for

Establishing Capacity Requirements

1. Basis of Notices

Section 104(a)(2)(A) of CALEA states

that capacity notices ‘‘may be based

upon the type of equipment, type of

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Notices 40697

7The Omnibus Crime Control and Safe Streets

Act of 1968 requires the Administrative Office of

the United States Courts to report to Congress in

April of each year the number and nature of federal

and state applications for orders authorizing or

approving the interception of wire, oral, or

electronic communications. 18 U.S.C. 2519(1).

8The Foreign Intelligence Surveillance Act

requires the Attorney General to report annually to

the Administrative Office of the United States

Courts and to Congress the total number of

applications made for orders and extensions of

orders approving electronic surveillance and the

total number of such orders and extensions either

granted, modified, or denied. 50 U.S.C. § 1807. In

addition, the Electronic Communications Privacy

Act requires the Attorney General to report

annually to Congress the number of orders for pen

registers and trap and trace devices applied for by

law enforcement agencies of the Department of

Justice. 18 U.S.C. 3126.

service, number of subscribers, type or

size or [sic] carrier, nature of service

area, or any other measure.’’ Section

104(a)(2)(B) indicates that capacity

notices ‘‘shall identify, to the maximum

extent practicable, the capacity required

at specific geographic locations.’’ The

FBI has identified possible methods for

calculating capacity requirements based

on these principles, and requests

commenters to provide input on them.

2. Historical Data in General

Commenters have correctly noted that

there is little electronic surveillance

history for many of the

telecommunications services identified

in the NOI. There are several

contributing factors that explain this

near absence of surveillance history.

First, the lack of a technical electronic

surveillance solution for some of these

services essentially precludes law

enforcement from even seeking court

authorizations for surveillance. Second,

many of these services are relatively

new and have had little time to establish

surveillance histories. Third, the recent

and dramatic increase in subscribership

rates for many of these

telecommunications services has lead to

a newfound interest on the part of law

enforcement in these services. Despite

these factors, some commenters have

argued that it is premature for the FBI

to develop capacity requirements at this

time given the lack of historical

electronic surveillance data on these

particular telecommunications services.

As stated previously, the lack of

historical data for many of the

telecommunications services listed in

the NOI does not preclude the FBI from

estimating reasonable actual and

maximum capacity requirements for

these services.

Similarly, some commenters have

suggested basing actual capacity

requirements on the number of

intercepts recorded in the Wiretap

Report filed annually with the

Administrative Office of the United

States Courts,7 or one of the other

reports 8 that list intercept activity.

There is no report, however, that

records all of the surveillances

addressed by CALEA. Additionally, the

surveillances that are reported in the

Wiretap Report, as previously discussed

in the Final Notice of Capacity, do not

identify the actual number of lines for

call content interceptions associated

with each court order, nor the number

of lines associated with the acquisition

of call-identifying information

interceptions (e.g., from pen registers

and trap and trace devices) that have

been performed by all law enforcement

agencies. In addition, the Wiretap

Report does not disaggregate the

numbers of intercepts according to the

specific type of service provided (e.g.,

traditional one-way paging, advanced

messaging or ancillary services). The

intercept activity recorded in the

Wiretap Reports does not provide an

accurate baseline for law enforcement to

estimate its capacity needs. Further,

most of the services covered by this

FNOI are new technologies with limited

intercept histories, but large potential

intercept needs. Thus, for paging, MSS,

and SMR services, the information

contained in the Wiretap Reports is not

a complete record of intercept activity.

3. Potential Methodologies for Setting

Capacity Requirements for Paging

Services

Commenters have raised several

arguments in favor of setting distinct

capacity requirements for traditional

one-way paging; advanced messaging

services; and ancillary services offered

by paging service providers. The FBI

finds some of these arguments

persuasive. In addition, one commenter

asserts that it is not necessary to

establish a specific capacity requirement

for traditional one-way paging because

law enforcement typically uses a cloned

pager to obtain call content or callidentifying information pursuant to a

court order. Although law enforcement

has used cloned pagers to implement

surveillance orders in the past, a

different intercept method may be used

in the future. Moreover, the use of

cloned pagers may not provide law

enforcement with all of the information

to which it might be entitled under a

specific court order. Accordingly, the

FBI will include traditional one-way

paging service as one of the three

categories of paging services when it

establishes capacity requirements for

these services.

a. Historical Data for Paging

Intercepts. Unlike more recently

deployed services such as MSS service,

traditional one-way paging service has a

significant history of law enforcement

surveillance intercepts. As discussed

above, however, the Wiretap Report is

not a sufficient source of data upon

which capacity requirements can be

based.

b. Geographic Basis. Section 104 (a)

(2) (B) of CALEA provides that notices

of capacity ‘‘shall identify, to the

maximum extent practicable, the

capacity required at specific geographic

locations.’’ Paging services seem to lend

themselves to geographic classification

because the FCC issues licenses for most

paging services on a geographic basis.

One commenter recommends that

traditional one-way paging service be

based on each provider’s composite

service area, rather than on a predefined

geographic market basis. For advanced

messaging and ancillary services, this

commenter suggests basing capacity

requirements on the Major Trading Area

(MTA), unless a carrier can provide

interface and processing capacity at one

nationwide point on its network. The

FBI seeks comment on the extent to

which MTAs represent geographic areas

that are appropriate for basing capacity

requirements, and requests comments

on any other geographic boundaries that

should be considered.

c. Per Carrier Basis. One commenter

suggests that capacity requirements for

traditional one-way paging services

should be applied to each paging service

provider’s operations nationwide, rather

than in each geographic market served.

Additionally, this commenter noted that

providers of traditional one-way paging

services provide service over vastly

differing areas, and that no single

geographic area can be used for

determining the proper capacity

requirement. Although the FBI’s initial

preference would be to establish

capacity requirements that are tied to

uniform geographic areas throughout

the paging industry, comments are

sought on the suggestion that capacity

for traditional one-way paging service

providers should be based on each

carrier’s service area.

d. Percentage of Subscribers. A

commenter also recommends that the

capacity requirements for paging service

providers should be determined by

application of a standardized percentage

to the number of subscriber units the

service provider serves, subject to

certain limits. Under the approach

advocated by this commenter, the

percentage would be based on the

historical incidence of paging

intercepts, and would be calculated

40698 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Notices

9For example, the FCC has determined that some

MSS service providers are not common carriers. See

Report and Order, CC Docket No. 92–76, FCC 93–

478 (released Nov. 16, 1993) (Little LEO Report and

Order); Report and Order, CC Docket No. 92–166,

FCC 94–261 (rel. Oct. 14, 1994) (Big LEO Report

and Order); and Report and Order, IB Docket No.

96–220 (rel. Oct. 15, 1997) (Little LEO Report and

Order).

10See 140 Cong. Rec. H–10779 (daily ed. Oct. 7,

1994) (statement of Rep. Hyde); see also Second

Report and Order at ¶ 10, n.25 (citing legislative

history); ¶ 14.

11See Second Report and Order at ¶ 11, n.26

(citing legislative history).

separately for traditional one-way

paging services, advanced messaging

services, and ancillary services.

As discussed previously, the

historical incidence of paging intercepts

is of little utility because the Wiretap

Report is not a sufficient source of data

upon which capacity requirements can

be based. Nonetheless, the FBI seeks

comment on the general parameters of

this commenter’s proposal to base

capacity requirements on a percentage

of paging service providers’ subscribers.

The FBI seeks comment on the merits of

this approach, specifically in terms of

increasing a carrier’s capacity

requirements as its growth rate

increases. Commenters may propose

suggestions as to how the FBI could

obtain up-to-date subscribership data

from paging service providers. The FBI

also seeks comment on how, under this

proposed approach, paging service

providers could be certain at all times

that they are in compliance based on the

number of end users they serve at any

given time. One commenter favors this

approach because it does not set fixed

capacity requirements. But it is possible

that basing capacity on a percentage of

subscribers would provide less certainty

to carriers for purposes of building their

networks and planning for network

expansion than would an approach that

articulates capacity as a fixed number of

intercepts. The FBI seeks comment on

the merits and defects in this proposed

approach.

e. Level of Subscribership. Another

potential methodology would link

capacity requirements to subscribership

using a fixed capacity number, rather

than a percentage, associated with

ranges of increasing subscriber numbers.

For example, actual and maximum

capacity numbers would be set for

paging service providers who serve, for

example, between one and 500,000

subscribers in a specified geographic

area. Higher capacity requirements

would be established for companies

who serve, for example, 500,000 to

1,000,000 subscribers within a

geographic area. As a service provider’s

subscribership grows, capacity

requirements would increase, but only

to specific predefined limits. Capacity

requirements would peak after a carrier

reached a specific number of

subscribers. This approach would

achieve results similar to the proposed

method involving percentages of

subscribers, except that it arguably

would provide paging service providers

with more certainty regarding specific

numbers of intercepts they would be

required to accommodate on their

networks. The FBI seeks comment on

the potential of this approach. In

addition, the FBI seeks comment on the

appropriate ranges of numbers of

subscribers that could be used, based on

the smallest number of subscribers

served by a carrier in the paging

industry and the subscribership bases of

the largest providers of paging services.

f. Additional Considerations.

Commenters are requested to submit

any additional considerations that

should be factored into a methodology

for establishing capacity requirements

for paging service providers. For

example, law enforcement’s capacity

needs are generally higher in

traditionally high crime areas. Thus, the

FBI seeks comment on how a

methodology for developing capacity

requirements for paging services can

take into consideration the differences

in criminal activity that take place in

various parts of the country. The FBI

seeks comment on any other

methodologies that might be used to

establish capacity requirements for

paging service providers. Commenters

are invited to provide details regarding

any such proposal.

4. Potential Methodologies for Setting

Capacity Requirements for MSS

Services

At the outset, the FBI notes that MSS

service providers, despite their

nontraditional regulatory history,9 are

expressly included among the service

providers listed in CALEA’s legislative

history.10 The MSSs currently in

existence or in their planning stages

vary greatly in terms of their network

architecture, business plans, and service

offerings. To the extent that MSS service

providers offer support services to their

contracted or designated common

carrier/reseller, MSS service providers

are liable under section 106 of CALEA,

which contains provisions for providers

of telecommunications support services.

To the extent that an MSS carrier/

reseller enables a customer to originate,

terminate, or direct communications, it

is subject to CALEA requirements.11

Given the differences among MSSs,

MSS service providers are requested to

submit comments describing their

unique circumstances. For example,

some MSS service providers serve as

space station licensees that only sell

access to a designated or contracted

carrier/reseller, who offers

telecommunications services to the

public. Additionally, some other MSS

service providers may own their own

earth station/gateway, and are directly

involved in the transmission of

communications to the public. The FCC

noted in its Second Report and Order

that a reseller’s responsibility under

CALEA is limited to its facilities. We

read this to mean that an MSS reseller

is not responsible for the CALEA

obligations pertaining to the capacity of

the MSS service provider’s underlying

facilities whose services it is reselling.

The FBI seeks comment on how the

MSS service provider will meet its

obligation to comply with CALEA, and

how the carrier/reseller that purchases

access from the MSS service provider

will comply with CALEA. In addition,

the FBI requests that MSS service

providers/space station licensees

identify the carrier(s)/reseller(s) and any

other entity that holds a gateway or

earth station license for services that use

the MSS space station. The FBI

emphasizes the need, based upon the

heterogeneous nature of the players in

the MSS industry, for specific comment

on these and other issues from each

MSS service provider and each MSS

carrier/reseller that serves, or plans to

serve, the United States.

In response to the NOI, commenters

suggested various methodologies that

could be used to develop capacity

requirements for MSS service providers

and MSS carriers/resellers. Commenters

are requested to supply detailed

comments on these proposals as

outlined below, and, in particular, to

identify specific characteristics of MSS

service providers and MSS carriers/

resellers that should be taken into

consideration as the FBI establishes

capacity requirements for MSS service

providers and carriers/resellers.

a. Historical Data for MSS Intercepts.

Historical data concerning law

enforcement’s intercept activity can

supply valuable insights into

establishing capacity requirements with

respect to some telecommunications

services, such as local exchange service.

The historical data for MSS is not

helpful because MSS service is a

relatively new service that has not yet

been widely deployed.

In response to the NOI, commenters

have expressed mixed opinions

regarding the use of historical data as a

foundation for establishing MSS

capacity requirements. Some

commenters support using historical

Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Notices 40699

12 In the Initial Notice of Capacity, a methodology

was established that used geographic regions as a

basis for configuring capacity requirements. The

reasoning behind this approach was that densely

populated areas usually receive more wiretap

requests from law enforcement than rural areas.

Therefore, telecommunications carriers serving

densely populated areas would be required to

reserve more capacity for law enforcement’s use

then those serving rural areas. Category III is the

lowest intercept category, representing law

enforcement’s minimum acceptable capacity

requirements for electronic surveillance activity.

Category III actual capacity was set for 0.05 percent

of the engineered capacity, and the maximum

capacity for 0.25 percent of the engineered capacity.

Initial Notice of Capacity at 53645.

data because it demonstrates the

extremely low number of actual MSS

intercept requests to date. These

commenters assert that the low number

of actual intercepts indicates that a low

capacity requirement should be created.

One commenter, however, points out

the difficulties in using historical data

on which to base MSS capacity

requirements because of the lack of any

comprehensive statistics for MSS

interceptions. In addition, a few

commenters point out that because MSS

is so different from traditional wireless

services, it is impossible to take

historical data from terrestrial wireless

intercepts and extrapolate MSS (nonterrestrial) capacity requirements.

Given the emerging nature of the MSS

industry and its relatively low current

subscribership numbers, it appears that

a capacity methodology based on

historical data is not appropriate for

MSS services. The number of intercepts

to date does not take into account the

satellite industry’s new market entrants

or its potential market growth. At this

point, increased subscribership to MSS

would make capacity requirements

based on existing historical intercept

activity obsolete. The FBI requests

commenters to provide input on this

statement, and suggest any alternatives

or supplementary information.

b. Geographic Basis/Per Gateway. In

the Final Notice of Capacity, the

capacity requirements for wireless

carriers (i.e., cellular and broadband

PCS) were based upon market service

areas, in particular, Metropolitan

Statistical Areas and Rural Statistical

Areas for cellular, and Major Trading

Areas and Basic Trading Areas for

broadband PCS. As various commenters

have pointed out, these specific

geographical designations would be

inappropriate to apply to MSS carriers

because their earth gateways service

vast territories. For example, some MSS

carriers use two or three gateways to

provide service to the entire United

States. These same gateways can also

provide service to Canada and Mexico.

Some commenters have also

suggested that MSS capacity

requirements be configured on a pergateway basis. A significant concern

with this approach is that the capacity

notice will need to be modified

whenever an MSS carrier installs or

deploys a new gateway which provides

service to the United States.

Commenters are requested to take this

concern into account when providing

input on the practicality of this

approach.

c. Per Carrier Basis. Some

commenters stress that it would be

difficult to create a standard capacity

requirement for all MSS carriers and

suggest establishing capacity

requirements on a per-carrier basis.

Unlike other types of

telecommunications carriers, each MSS

service provider has a network

architecture and business plan that is

distinct from other MSS service

providers. Moreover, the MSS industry

differs from other telecommunications

providers in that a potentially large

portion of the future market could be

served by carriers that are currently in

the planning stages and not yet offering

service. The FBI seeks comment on

which methodology might be applied to

various carriers based on their unique

characteristics.

d. Percentage of Subscribers. A

methodology based on a percentage of

an MSS carrier’s subscribers, as

discussed in detail above with respect to

paging service providers, would result

in capacity requirements that reflect a

percentage of an MSS carrier’s overall

customer base. Under this approach, the

capacity requirement for carriers that

have low subscribership would be

relatively low, but the requirement

would increase—only up to a certain,

pre-established point—as subscribership

grows. This approach would require the

FBI to have accurate, up-to-date

subscribership data. The FBI seeks

comment on the viability of basing

capacity requirements for MSS carriers

on a percentage of their subscribers. The

FBI also seeks comment on whether

there are existing sources of

subscribership data that could be used

to calculate capacity requirements,

including whether MSS carriers

publicly and routinely release the

number of customers they serve.

e. Percentage of Engineered Capacity.

The Initial Notice of Capacity, released

in 1995, defines engineered capacity as

‘‘the maximum number of subscribers

that can be served by that equipment,

facility, or services’’ (60 FR 53643,

53645). A commenter proposes that

MSS capacity requirements could be

based on a percentage of engineered

capacity. The same commenter

stipulates, however, that a percentage of

engineered capacity should be used

only if it is applied to the current

serving capacity of the gateway, as

opposed to the capacity to which the

gateway can be ultimately expanded.

This commenter indicates that because

MSS services will have a very small

customer base initially, and therefore a

small amount of available capacity, if

the FBI requires a percentage based on

all of a gateway’s potential serving

capacity, ‘‘far too much capacity will be

required at the initial deployment stage,

imposing significant cost and technical

constraints.’’ Furthermore, some

commenters suggest that if a percentage

of engineered capacity approach is used,

then the percentage should be set at the

0.05 percent actual and 0.25 percent

maximum ‘‘Category III requirements’’

because MSS carriers primarily serve

rural and remote areas.12

Using a percentage of engineered

capacity methodology to establish

capacity for MSS carriers offers a

flexible approach, but might be difficult

to implement. For example, after a

percentage was established, an MSS

carrier would be required to supply data

on its equipment, facilities, and other

network elements, and would have to

submit periodic updates on any changes

to these system components. In

addition, because the architecture of

each MSS carrier is unique, it may be

difficult to establish a uniform

percentage that all MSS carriers could

accommodate. If this methodology were

combined with a per-carrier approach,

however, each capacity requirement

could be specific to each MSS carrier.

The FBI seeks comment on the

viability of using a percentage of

engineered capacity as a means of

establishing MSS capacity requirements.

The FBI requests commenters to identify

the equipment, facilities, and other

network elements that would have to be

examined in order to use this approach

to determine capacity requirements.

5. Potential Methodologies for Setting

Capacity Requirements for SMR

Services

In its Second Report and Order, the

FCC has concluded that all SMR

services which are interconnected to the

PSTN are subject to CALEA.

Specifically, the FCC indicated that

push-to-talk ‘‘dispatch’’ service is

subject to CALEA to the extent it is

offered in conjunction with

interconnected service.

Commenters have suggested a variety

of methodologies for establishing

capacity requirements for SMR service

providers. The methodologies proposed

on the record, as well as additional

40700 Federal Register / Vol. 65, No. 127 / Friday, June 30, 2000 / Notices

13See 47 CFR 90.7

potential methodologies, are discussed

below. The FBI requests all commenters

to supply detailed input on these and

any other methodologies.

a. Historical Data for SMR Intercepts.

A few commenters have suggested using

historical intercept data to set capacity

requirements for SMR service providers.

Like MSS, the historical data on SMR

appears to be of little value in

establishing a meaningful baseline for

capacity requirements. One commenter

urges law enforcement not to extract

historical interception data from other

services, such as wireless terrestrial or

local exchange services, and attempt to

convert that information for use in the

formulation of methodologies for SMR

service providers. On the other hand,

the FBI also notes another commenter’s

position that telecommunications

services that compete with one another

for end users should have comparable

capacity requirements so that CALEA

compliance does not unfairly burden a

competing service provider. The FBI

intends to examine the characteristics of

SMR services during the course of

establishing its capacity requirements.

Although the FBI emphasizes law

enforcement’s overarching need to

establish capacity requirements that will

ensure public safety, the FBI is sensitive

to the competitive concerns of

businesses and seeks comment on how

these competing interests could affect

capacity requirements.

b. Geographic Basis. Most SMR

licenses are based on defined

geographic areas. Like paging services,

SMR services appear to be well suited

to capacity requirements that follow

geographic parameters. The FBI seeks

comment on whether capacity

requirements should be based on the

same geographic areas on which

licenses are based or whether there is a

more appropriate geographic basis.

Because SMR licenses are awarded on a

variety of geographic bases,13 for

example, by Economic Area or by MTA,

the FBI seeks comment on the most

appropriate geographic area by which to

assign capacity requirements for SMR

services.

c. Per Carrier Basis. One commenter

has suggested that the FBI use each

individual SMR service provider’s

characteristics to establish each service

provider’s capacity requirements.

Unlike MSS service providers, which

have unique system architecture and

business plans, SMR service providers

are not sufficiently different from one

another to warrant the establishment of

capacity requirements on a per carrier

basis. Such an individualized approach

is likely to be overly burdensome to

administer and enforce. However, the

FBI still seeks the opinions of

commenters on this proposed approach.

d. Percentage of Subscribers.

Conceivably, an approach that applies a

percentage of an SMR service provider’s

overall subscriber base, similar to the

methodology proposed for paging

services and MSS services, might be

used to establish capacity requirements

for SMR services. The FBI requests

comment on the feasibility of this

approach for SMR service providers and

asks commenters to identify any sources

of data regarding the number of end

users that subscribe to either analog or

digital SMR services.

e. Level of Subscribership. As

suggested for paging service providers,

capacity requirements for SMR service

providers could be linked to predefined

levels of subscribership. Under such an

approach, SMR service providers could

be grouped in categories according to

the number of subscribers they serve.

For example, those entities with

relatively few subscribers would be

assigned an actual capacity requirement

of X intercepts, those with an

intermediate number of subscribers

would be required to support X+Y

intercepts, while SMR service providers

with a large number of subscribers

would have an augmented capacity

requirement of X+Y+Z. The FBI seeks

comment on the effectiveness of

applying capacity requirements that

vary according to predefined levels of

subscribership.

f. Switch-Based. As an alternative, a

commenter suggests that capacity

requirements should be switch-based,

rather than geographic-based. The

commenter also suggests that the FBI

could establish a high-end capacity

limitation on a single switch. This

option seems to be overly burdensome

because it would require the FBI to

obtain information on the network

configuration of every SMR service

provider before it could promulgate

capacity requirements. Additionally, the

network configuration is likely to

change regularly as carriers install new

switches and upgrade older switches.

Commenters are requested to address

the merits of this approach, particularly

any benefits that could be derived from

establishing capacity requirements on a

per-switch basis.

g. Local Exchange. A commenter has

suggested that the appropriate place for

law enforcement to implement an

interception is at the local exchange,

because SMR service providers are

typically connected to the local

exchange office by use of ordinary

business subscriber lines. Therefore, the

commenter asserts that capacity

requirements for SMR service providers

would be redundant because capacity

requirements for local exchange services

are already in place. However, the FBI

notes that the commenter’s suggestion is

only accurate for analog SMR service,

not digital SMR service. Therefore, the

FBI seeks comment on this suggestion.

D. Conclusion 

The FBI invites all commenters to

provide input in response to this FNOI.

The FBI is committed to giving all

commenters an opportunity for

meaningful participation in the process

of implementing CALEA. The FBI will

continue to work with the

telecommunications industry to develop

capacity methodologies for all

telecommunications carriers subject to

CALEA.

This FNOI is part of a notice and

comment proceeding in which ex parte

communications are permitted pursuant

to 28 CFR 50.17.

III. Filing and Comment Information

Although printed comments are

welcomed, commenters are encouraged

to submit their responses as electronic

documents on a 3.5 inch disk.

Documents must be in WordPerfect or

Rich Text Format (RTF) and must be the

only file on the disk. In addition, all

electronic submissions must be

accompanied by a printed sheet listing

the point of contact, company or

organization name and address, and

telephone number of an individual who

can replace the disk if it was damaged

in transit. All comments received will

be available for review at the FBI’s

Freedom of Information and Privacy Act

(FOIPA) Reading Room located at FBI

Headquarters, 935 Pennsylvania

Avenue, NW, Washington, DC 20535.

To review the comments, interested

parties should contact the FBI’s FOIPA

Reading Room staff, telephone number

(202) 324–8057, to schedule an

appointment (48 hours advance notice

required).

Authority: 47 U.S.C. 1001–1010.

Dated: March 29, 2000.

Louis J. Freeh,

Director, Federal Bureau of Investigation,

Department of Justice.

[FR Doc. 00–16584 Filed 6–29–00; 8:45 am]

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