22446 Federal Register / Vol. 66, No. 87 / Friday, May 4, 2001 / Rules and Regulations

proceeding, the Commission removes

any remaining regulatory uncertainty

regarding calling party pays occasioned

by the pendency of the proceeding.

Ordering Clauses

4. The Petition for Reconsideration of

the Declaratory Ruling in this

proceeding, filed by the Public Utility

Commission of Ohio on August 16,

1999, is denied.

5. The proceeding is terminated

without further action.

6. This action is taken pursuant to

sections 1, 4(i), 7, 201, 202, 303(r), and

332 of the Communications Act of 1934

as amended, 47 U.S.C. 151, 154(i), 157,

201, 202, 303(r), 332.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

[FR Doc. 01–11169 Filed 5–3–01; 8:45 am]

BILLING CODE 6712–01–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 64

[CC Docket No. 97–213; FCC 01–126]

Communications Assistance for Law

Enforcement Act

AGENCY: Federal Communications

Commission.

ACTION: Final rule; petitions for

reconsideration.

SUMMARY: In this document the

Commission responds to petitions for

reconsideration of previous Commission

decisions in this proceeding which

implements the Communications

Assistance for Law Enforcement Act

(CALEA). The Commission makes minor

revisions to the Commission’s rules to

clarify the arrangements

telecommunications carriers subject to

CALEA must make to ensure that law

enforcement agencies can contact them

when necessary, and to clarify the

interception activity that triggers a

record keeping requirement. The

Commission makes additional

clarifications without altering the rules,

but otherwise denies the requests for

reconsideration.

DATES: Effective June 4, 2001.

FOR FURTHER INFORMATION CONTACT: John

Spencer or Susan Kimmel, 202–418–

1310.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s Second

Order on Reconsideration (Second

Order) in CC Docket No. 97–213; FCC

01–126, adopted April 9, 2001, and

released April 16, 2001. The complete

text of this Second Order is available for

inspection and copying during normal

business hours in the FCC Reference

Information Center, Courtyard Level,

445 12th Street, SW., Washington, DC,

and also may be purchased from the

Commission’s copy contractor,

International Transcription Services

(ITS, Inc.), CY–B400, 445 12th Street,

SW., Washington, DC.

Synopsis of the Second Order on

Reconsideration

1. This Second Order on

Reconsideration (Second Order)

resolves two petitions for

reconsideration of the Report and Order

(R&O) in this proceeding (64 FR 51462,

September 23, 1999) and one petition

for reconsideration of the Second Report

and Order (Second R&O) in this

proceeding (64 FR 55164, October 12,

1999). These decisions implemented

sections 102, 105, and 301 of the

Communications Assistance for Law

Enforcement Act (CALEA)

(Communications Assistance for Law

Enforcement Act, Public Law 104–414,

108 Stat. 4279, 1994.) The Second Order

makes minor revisions to 47 CFR

64.2103 and 64.2104 to clarify the

arrangements telecommunications

carriers subject to CALEA must make to

ensure that law enforcement agencies

can contact them when necessary, and

the interception activity that triggers a

record keeping requirement. The

Second Order makes additional

clarifications without altering the

Commission’s rules, but otherwise

denies the requests for reconsideration.

2. The U.S. Department of Justice and

the Federal Bureau of Investigation (FBI)

seek stronger personnel security

measures than those adopted in the First

R&O, in order to ‘‘ensure the

trustworthiness of the private-company

employees who have become

increasingly responsible for

implementing electronic surveillance.’’

As discussed in paragraphs 4 through 14

of the Second Order, the Commission

denies the FBI’s request. However, the

Commission encourages carriers to

consider voluntarily adopting, as

internal procedures, measures to

respond to the concerns presented by

the FBI, as appropriate, and making

them part of their systems security and

integrity (SSI) policies and procedures.

3. The FBI also proposes a

requirement that carriers generate an

automated message that would permit

law enforcement agencies (LEAs) to

confirm periodically that the software

used to conduct an interception is

working correctly and is accessing the

equipment, facilities, or services of the

correct subscriber. The Commission, as

detailed in paragraphs 15 through 17 of

the Second Order, similarly denies this

proposal. In so doing, however, the

Commission notes that ‘‘there is nothing

that would prevent carriers from

providing this capability either on a

voluntary basis or with compensation

from LEAs.’’

4. The FBI next asks the Commission

to modify the rules, adopted in the R&O

requiring that carriers report acts of

unauthorized electronic surveillance

that occur on their premises and

compromises of their SSI procedures

involving the execution of electronic

surveillance ‘‘within a reasonable

period of time upon discovery.’’ The FBI

recommends that the Commission

modify the rule to require reporting ‘‘as

soon after discovery as is reasonable in

light of privacy and safety concerns and

the needs of law enforcement.’’ The

Commission, as indicated in paragraphs

18 through 20 of the Second Order,

shares the FBI’s concern about the

importance of prompt reporting of

systems security breaches and expects

carriers to report breaches with due

diligence and dispatch. However, in the

absence of significant problems to date,

the Commission declines to adopt

additional factors to further define how

quickly a carrier should report a

security breach to law enforcement.

5. The FBI seeks modification of the

Commission’s record keeping

requirement in 47 CFR 64.2104(a)(1),

pertaining to the commencement of

interceptions. Specifically, FBI argues

that the current language could lead to

interpretations when the circuit is open

for the duration of ‘‘multiple intercepts,

the carrier’s records of these various

intercepts would all show the same

‘start date and time,’ ’’ as opposed to

recording individual interceptions.

Thus, FBI asks the Commission to

modify the phrase in § 64.2104(a)(1)

from ‘‘date and time of the opening of

the circuit’’ to ‘‘date and time at which

the interception of communications or

access to call identifying information

was enabled.’’ The Commission, in

paragraphs 21 through 24 of the Second

Order, grants the FBI’s request and

modifies the rules accordingly with

slight modification.

6. The National Telephone

Cooperative Association (NCTA) asks

that the Commission clarify the

language of 47 CFR 64.2103 ‘‘to make it

obvious that a single person in not

responsible for being law enforcement’s

point of contact[for CALEA matters], 24

hours a day, 7 days a week.’’ The

Commission agrees with NCTA and, as

indicated in paragraphs 25 through 28

of the Second Order, modifies § 64.2102

accordingly. The Commission

Federal Register / Vol. 66, No. 87 / Friday, May 4, 2001 / Rules and Regulations 22447

additionally makes two other

clarifications regarding carrier SSI

policies and procedures. First, the

Commission revises § 64.2103 to require

carriers to place their information

regarding responsible personnel and

contacts in a separate appendix to their

SSI policies and procedures. Second,

the Commission clarifies that it will

routinely make available to law

enforcement agencies the carriers’

responsible personnel and contact

information. Finally, as discussed in

paragraph 31 of the Second, Order, the

Commission declines to adopt other FBI

proposals contained in its late-filed

supplement.

7. The Commission, in paragraphs 32

through 34 of the Second Order, denies

NCTA’s request that the Commission

exempt small, rural telephone

companies from the requirement to file

with the Commission the policies and

procedures they use to comply with the

systems security and integrity rules. The

Commission notes that small entitities

have the flexibility to tailor their

policies and procedures to its own

unique circumstances.

8. Finally, as discussed in paragraphs

35 through 38 of the Second Order, FBI,

in its petition for reconsideration and/

or clarification of the Second R&O asks

the Commission to clarify carriers’

responsibility for CALEA compliance in

resale situations. The Second R&O held

that as telecommunications carriers,

resellers are generally subject to all

provisions of CALEA, but that

‘‘resellers’ responsibility under CALEA

should be limited to their own

facilities.’’ FBI is concerned that law

enforcement might be effectively

disabled from enforcing CALEA’s

assistance capability obligations in

certain resale situations. The FBI asks

that the Commission clarify either that

(1) a carrier that sells

telecommunications services to a

reseller is itself a ‘‘telecommunications

carrier’’ under CALEA with respect to

such services; or (2) if an underlying

facilities-based service provider is not a

‘‘telecommunications carrier,’’ the

reseller remains responsible in full for

ensuring that the telecommunications

services it provides to the public, and

the equipment and facilities involved in

providing that service, are CALEAcompliant. The Second Order clarifies

that the language in the Second R&O

regarding resellers exempts them from

CALEA to the extent that they resell

services of other, facilities-based

carriers. The Commission clarifies that

that decision was premised on the

obligations of the underlying facilitiesbased carriers to comply with CALEA.

Thus, to the extent that a reseller resells

services or relies on facilities or

equipment of an entity that is not a

telecommunications carrier for purposes

of the CALEA and thus is not subject to

CALEA’s assistance capability

requirements, the Commission did not

intend to exempt the reseller from its

overall obligation to ensure that its

services satisfy all the assistance

capability requirements of section 103.

Final Regulatory Flexibility Act

Certification

9. The First Report and Order in this

proceeding incorporated a Final

Regulatory Flexibility Analysis of the

effect on small entities of the CALEA

rules adopted at that time, and the

Second Report and Order incorporated

a Final Regulatory Flexibility Analysis

of the effect on small entities of the

actions taken therein, which did not

include CALEA rules. The Regulatory

Flexibility Act of 1980, as amended

(RFA) requires that a regulatory

flexibility analysis be prepared for

rulemaking proceedings, unless the

agency certifies that ‘‘the rule will not

have a significant economic impact on

a substantial number of small entities.’’

(The RFA, 5 U.S.C. 601 et seq., has been

amended by the Contract With America

Advancement Act of 1996, Public Law

104–121, 110 Stat. 847 (1996)

(CWAAA). Title II of the CWAAA is the

Small Business Regulatory Enforcement

Fairness Act of 1996 (SBREFA). The

RFA generally defines ‘‘small entity’’ as

having the same meaning as the terms

‘‘small business,’’ ‘‘small organization,’’

and ‘‘small governmental jurisdiction.’’

In addition, the term ‘‘small business’’

has the same meaning as the term

‘‘small business concern’’ under the

Small Business Act. 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.

10. This Second Order on

Reconsideration does not make major

revisions to the existing CALEA rules or

enact new requirements, but does make

minor revisions to 47 CFR 64.2103 and

64.2104. First, it clarifies the

arrangements that telecommunications

carriers subject to CALEA must make to

ensure that law enforcement agencies

can contact them when necessary, by

requiring the use of a ‘‘pull-off’’ page for

submitting contact information to the

Commission. Second, it clarifies the

definition of the interception activity

that triggers a record keeping

requirement. Neither change requires

the collection of additional information

or increases the frequency of record

keeping, and the cost of complying with

these revisions is nominal. Third, it

clarifies without rule change that

resellers are not exempt from the

obligation to ensure that their services

satisfy all the assistance capability

requirements of section 103 of CALEA.

As such, this action imposes no

reporting, recordkeeping or other

compliance requirement beyond those

imposed by CALEA itself. Accordingly,

the Commission certifies, pursuant to

section 605(b), that the rule revisions

adopted in this Second Order on

Reconsideration will not have a

significant economic impact on a

substantial number of small entities.

11. The Commission will send a copy

of the Second Order on Reconsideration,

including a copy of this final

certification, in a report to Congress

pursuant to the Small Business

Regulatory Enforcement Fairness Act of

1996. The Commission will also send a

copy of the Second Order on

Reconsideration, including this final

certification, to the Chief Counsel for

Advocacy of the Small Business

Administration.

Paperwork Reduction Act of 1995

Analysis

12. This Second Order does not

contain a new information collection,

but only requires a change of format for

future submissions of a carrier’s SSI

filing. Specifically, as described in

paragraph 24, and in conformance with

revised § 64.2103(b)(4) of the

Commission’s rules, 47 CFR

64.2103(b)(4), point of contact

information must appear in a separate

appendix attached to the SSI report.

13. This action is taken pursuant to

sections 1, 2, 4(i) and (j), 201, 229, 303(f)

and (r), and 332 of the Communications

Act of 1934, as amended, 47 U.S.C. 151,

152, 154(i) and (j), 201, 229, 303(f) and

(r), and 332.

Ordering Clauses

14. Part 64 of the Commission’s rules

is amended.

15. The rule amendments made by

this Second Order shall become

effective June 4, 2001. It Is Further

Ordered that the Consumer Information

Bureau, Reference Operations Division,

shall send a copy of this Second Order,

including the Final Regulatory

Flexibility Certification, to the Chief

Counsel for Advocacy of the Small

Business Administration.

16. The DOJ/FBI Motion to File

Consolidated Reply to Oppositions to

Petition for Reconsideration Exceeding

Ten Pages in Length is granted.

17. The Motion for Acceptance of

Supplemental Comments filed by the

22448 Federal Register / Vol. 66, No. 87 / Friday, May 4, 2001 / Rules and Regulations

Department of Justice/Federal Bureau of

Investigation is granted.

18. The Petition for Reconsideration

of section 105 Report and Order filed by

the Department of Justice/Federal

Bureau of Investigation is granted to the

extent indicated herein, and is

otherwise denied.

19. The Petition for Reconsideration

and/or Clarification filed by the

National Telephone Cooperative

Association is granted to the extent

indicated herein, and is otherwise

denied.

20. The Petition for Reconsideration

and/or Clarification filed by the

Department of Justice/Federal Bureau of

Investigation is granted to the extent

indicated herein, and is otherwise

denied.

List of Subjects in 47 CFR Part 64

Communications common carriers,

Reporting and recordkeeping

requirements.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

Rule Changes

For the reasons discussed in the

preamble, the Federal Communications

Commission amends 47 CFR part 64 as

follows:

PART 64—MISCELLANEOUS RULES

RELATING TO COMMON CARRIERS

1. The authority citation for part 64

continues to read as follows:

Authority: 47 U.S.C. 154, 47 U.S.C. 225, 47

U.S.C. 251(e)(1), 151, 154, 201, 202, 205,

218–220, 254, 302, 303, and 337, unless

otherwise noted. Interpret or apply section

201, 218, 225, 226, 227, 229, 332, 48 Stat.

1070, as amended. 47 U.S.C. 201–204, 208,

225, 226, 227, 229, 332, 501 and 503 unless

otherwise noted.

2. Section 64.2103 is revised to read

as follows:

§ 64.2103 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 callidentifying 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 § 64.2104;

(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.

3. Section 64.2104 is amended by

revising paragraph (a)(1)(ii) to read as

follows:

§ 64.2104 Maintaining secure and accurate

records.

(a) * * *

(1) * * *

(ii) The start date and time that the

carrier enables the interception of

communications or access to call

identifying information;

* * * * *

[FR Doc. 01–11168 Filed 5–3–01; 8:45 am]

BILLING CODE 6712–01–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 73

[DA 01–1078, MM Docket No. 01–30, RM–

10042]

Digital Television Broadcast Service;

Bozeman, MT

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: The Commission, at the

request of KCTZ Communications, Inc.,

licensee of station KBZK(TV),

substitutes DTV channel 13 for DTV

channel 16 at Bozeman, Montana. See

66 FR 9062, February 6, 2001. DTV

channel 13 can be allotted to Bozeman

in compliance with the principle

community coverage requirements of

Section 73.625(a) at reference

coordinates (45–40–24 N. and 110–52–

02 W.) with a power of 160, HAAT of

305 meters and with a DTV service

population of 79 thousand. Since the

community of Bozeman is located

within 400 kilometers of the U.S.-

Canadian border, concurrence by the

Canadian government has been obtained

for this allotment.

With this action, this proceeding is

terminated.

DATES: Effective June 15, 2001.

FOR FURTHER INFORMATION CONTACT: Pam

Blumenthal, Mass Media Bureau, (202)

418–1600.

SUPPLEMENTARY INFORMATION: This is a

synopsis of the Commission’s Report

and Order, MM Docket No. 01–30,

adopted April 27, 2001, and released

May 1, 2001. The full text of this

Commission decision is available for

inspection and copying during normal

business hours in the FCC Reference

Center 445 12th Street, SW.,

Washington, DC. The complete text of

this decision may also be purchased

from the Commission’s copy contractor,

International Transcription Services,

Inc., (202) 857–3800, 1231 20th Street,

NW., Washington, DC 20036.

List of Subjects in 47 CFR Part 73

Television, Digital television

broadcasting.

Part 73 of Title 47 of the Code of

Federal Regulations is amended as

follows:

PART 73—[AMENDED]

1. The authority citation for Part 73

continues to read as follows:

Authority: 47 U.S.C. 154, 303, 334, 336.

§ 73.622 [Amended]

2. Section 73.622(b), the Table of

Digital Television Allotments under

Montana, is amended by removing DTV

channel 16 and adding DTV channel 13

at Bozeman.

Federal Communications Commission.

Barbara A. Kreisman,

Chief, Video Services Division, Mass Media

Bureau.

[FR Doc. 01–11173 Filed 4–3–01; 8:45 am]

BILLING CODE 6712–01–P