59664 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

CONNECTICUT—PM–10 

Designated area 

Designation Classification 

Date Type Date Type 

New Haven County City of New Haven ......... 12/12/05 Attainment.

* * * * * * * 

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[FR Doc. 05–20418 Filed 10–12–05; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 64 

[ET Docket No. 04–295; RM–10865; FCC 05–

153] 

Communications Assistance for Law 

Enforcement Act and Broadband 

Access and Services 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: In this document, the Federal 

Communications Commission 

(Commission) adopts a rule establishing 

that providers of facilities-based 

broadband Internet access services and 

providers of interconnected voice over 

Internet Protocol (VoIP) services—

meaning VoIP service that allows a user 

generally to receive calls originating 

from and to terminate calls to the public 

switched telephone network (PSTN)—

must comply with the Communications 

Assistance for Law Enforcement Act 

(CALEA). This new rule will enhance 

public safety and ensure that the 

surveillance needs of law enforcement 

agencies continue to be met as Internetbased communications technologies 

proliferate. 

DATES: Effective Date: This rule is 

effective November 14, 2005. 

Compliance Date: Newly covered 

entities and providers of newly covered 

services must comply with CALEA 

within 18 months of November 14, 

2005. 

ADDRESSES: Federal Communications 

Commission, 445 12th Street, SW., 

Washington, DC 20554. 

FOR FURTHER INFORMATION CONTACT: 

Carol Simpson, Attorney-Advisor, 

Competition Policy Division, Wireline 

Competition Bureau, at (202) 418–2391. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s First 

Report and Order (1st R&O) in ET 

Docket No. 04–295, FCC 05–153, 

adopted August 5, 2005, and released 

September 23, 2005. The complete text 

of this document is available for 

inspection and copying during normal 

business hours in the FCC Reference 

Information Center, Portals II, 445 12th 

Street, SW., Room CY–A257, 

Washington, DC 20554. This document 

may also be purchased from the 

Commission’s duplicating contractor, 

Best Copy and Printing, Inc., 445 12th 

Street, SW., Room CY–B402, 

Washington, DC 20554, telephone (800) 

378–3160 or (202) 863–2893, facsimile 

(202) 863–2898, or via e-mail at http:// 

www.bcpiweb.com. It is also available 

on the Commission’s Web site at http:// 

www.fcc.gov. 

Synopsis of the First Report and Order 

1. Background. In response to 

concerns that emerging technologies 

such as digital and wireless 

communications were making it 

increasingly difficult for law 

enforcement agencies to execute 

authorized surveillance, Congress 

enacted CALEA on October 25, 1994. 

CALEA was intended to preserve the 

ability of law enforcement agencies to 

conduct electronic surveillance by 

requiring that telecommunications 

carriers and manufacturers of 

telecommunications equipment modify 

and design their equipment, facilities, 

and services to ensure that they have the 

necessary surveillance capabilities. The 

Commission began its implementation 

of CALEA with the release of a Notice 

of Proposed Rulemaking in 1997 (62 FR 

63302, November 27, 1997). Since that 

time, the Commission has taken several 

actions and released numerous orders 

implementing CALEA’s requirements. 

2. On March 10, 2004, the Department 

of Justice, the Federal Bureau of 

Investigation, and the Drug Enforcement 

Administration (collectively, DOJ) filed 

a petition asking the Commission to 

declare that broadband Internet access 

services and VoIP services are covered 

by CALEA. The Petition also requested 

that the Commission initiate a 

rulemaking proceeding to resolve, on an 

expedited basis, various outstanding 

issues associated with the 

implementation of CALEA. The 

Commission declined to issue a 

declaratory ruling, finding instead that 

it was necessary to compile a more 

complete record on the factual and legal 

issues surrounding the applicability of 

CALEA to broadband Internet access 

services and VoIP services, and thus 

issued a Notice of Proposed Rulemaking 

(NPRM) (69 FR 56976, September 23, 

2004). 

3. The Commission initiated this 

proceeding both to undertake a 

comprehensive and thorough 

examination of the appropriate legal and 

policy framework of CALEA, and to 

respond to DOJ’s Petition asking the 

Commission to seek comment on the 

various outstanding issues associated 

with the implementation of CALEA, 

including the potential applicability of 

CALEA to broadband Internet access 

services and VoIP services. The NPRM 

indicated that the Commission would 

analyze the applicability of CALEA to 

broadband Internet access services and 

VoIP services under section 

102(8)(B)(ii), a provision of CALEA 

upon which the Commission had never 

before relied. That provision—the 

Substantial Replacement Provision 

(SRP)—requires the Commission to 

deem certain service providers to be 

telecommunications carriers for CALEA 

purposes even when those providers are 

not telecommunications carriers under 

the Communications Act of 1934, as 

amended (Communications Act). The 

NPRM indicated that the Commission 

had never before exercised its section 

102(8)(B)(ii) authority to identify 

additional entities that fall within 

CALEA’s definition of 

‘‘telecommunications carrier,’’ and had 

never before solicited comment on the 

discrete components of that subsection. 

4. The NPRM sought comment, among 

other things, on the Commission’s 

tentative conclusions that: (1) Congress 

intended the scope of CALEA’s 

definition of ‘‘telecommunications 

carrier’’ to be more inclusive than that 

of the Communications Act; (2) 

facilities-based providers of any type of 

broadband Internet access service are 

subject to CALEA; (3) ‘‘managed’’ VoIP 

services are subject to CALEA; and (4) 

the phrase ‘‘a replacement for a 

substantial portion of the local 

telephone exchange service’’ in section 

Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 59665 

102 of CALEA calls for assessing the 

replacement of any portion of an 

individual subscriber’s functionality 

previously provided via ‘‘plain old 

telephone service’’ (POTS). 

5. Discussion. In this 1st R&O, we 

interpret the SRP to cover facilitiesbased broadband Internet access and 

interconnected VoIP. Our analysis first 

interprets the SRP to establish a legal 

framework for assessing services under 

CALEA, explaining the basis for all 

statutory interpretations that inform this 

framework. Next, we apply this 

framework to providers of facilitiesbased broadband Internet access 

services and interconnected VoIP 

services. In each case, we find that these 

providers are subject to CALEA under 

the SRP. We then discuss the scope of 

our actions today and the relationship of 

these actions to the Commission’s 

efforts to resolve a number of 

outstanding issues related to CALEA, 

such as assistance capability 

requirements, compliance, enforcement, 

identification of future services and 

entities subject to CALEA, and costrelated matters. 

6. Legal Framework. In this section, 

we explain how CALEA’s SRP requires 

us to determine that some providers are 

subject to CALEA even if they are not 

telecommunications carriers as defined 

in the Communications Act. We further 

explain the relationship between the 

SRP and CALEA’s exclusion for 

information services. Because the text of 

CALEA does not provide unambiguous 

direction, we consider the structure and 

history of the relevant provisions, 

including Congress’s stated purposes, 

and interpret the statute in a manner 

that most faithfully implements 

Congress’s intent. We conclude, as we 

indicated in the NPRM, that the terms 

‘‘telecommunications carrier’’ and 

‘‘information services’’ in CALEA 

cannot be interpreted identically to the 

way those terms have been interpreted 

under the Communications Act in light 

of the statutory text as well as 

Congress’s intent and purpose in 

enacting CALEA. 

7. CALEA Definition of 

‘‘Telecommunications Carrier.’’ We 

affirm our tentative conclusion that 

Congress intended the scope of 

CALEA’s definition of 

‘‘telecommunications carrier’’ to be 

more inclusive than the similar 

definition of ‘‘telecommunications 

carrier’’ in the Communications Act. 

Critically, while certain portions of the 

definition are the same in both statutes, 

CALEA’s SRP ‘‘has no analogue’’ in the 

Communications Act, thus rendering 

CALEA’s definition of 

‘‘telecommunications carrier’’ broader 

than that found in the Communications 

Act. The SRP directs the Commission to 

deem certain providers to be 

telecommunications carriers for CALEA 

purposes, whether or not they satisfy 

the definition of telecommunications 

carrier in sections 102(8)(A) and 

102(8)(B)(i). The SRP reflects Congress’s 

intent to ‘‘preserve the government’s 

ability to * * * intercept 

communications that use advanced 

technologies such as digital or wireless 

transmission.’’ Under the SRP, a 

telecommunications carrier is ‘‘a person 

or entity engaged in providing wire or 

electronic communication switching or 

transmission service to the extent that 

the Commission finds that such 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].’’

8. The SRP contains three 

components, each of which must be 

satisfied before the Commission can 

deem a person or entity a 

telecommunications carrier for purposes 

of CALEA. We address each of these 

components in turn. First, the SRP 

requires that an entity be ‘‘engaged in 

providing wire or electronic 

communication switching or 

transmission service.’’ In the NPRM, we 

interpreted the term ‘‘switching’’ in this 

phrase to include ‘‘routers, softswitches, 

and other equipment that may provide 

addressing and intelligence functions 

for packet-based communications to 

manage and direct the communications 

along to their intended destinations.’’

We affirm this reading of the statute, 

which has support in the record. We 

disagree with commenters who claim 

that the term ‘‘switching’’ as used by 

Congress in 1994 did not contemplate 

routers and softswitches, and thus 

suggest that the interpretation of this 

term must forever be limited to the 

function as it was commonly 

understood in 1994, namely circuit 

switching in the narrowband PSTN. Our 

decision today is reinforced by judicial 

precedent that has found CALEA to 

apply to certain packet-switched 

services. Moreover, limiting the 

interpretation of ‘‘switching’’ to circuitswitched technology would effectively 

eliminate any ability the Commission 

may have to extend CALEA obligations 

under the SRP to service providers 

using advanced digital technologies, in 

direct contravention of CALEA’s stated 

purpose. 

9. Second, the SRP requires that the 

service provided be ‘‘a replacement for 

a substantial portion of the local 

telephone exchange service.’’ We 

conclude that this requirement is 

satisfied if a service replaces any 

significant part of an individual 

subscriber’s functionality previously 

provided via circuit-switched local 

telephone exchange service. This 

interpretation of an ambiguous statutory 

provision is most consistent with the 

language of section 102(8)(B)(ii), the 

express purpose of CALEA, and its 

legislative history. Congress did not 

enact language consistent with an 

interpretation offered by some 

commenters that would require the 

widespread use of a service before the 

SRP may be triggered. Instead, the SRP’s 

phrase ‘‘substantial portion of the local 

telephone exchange service’’ indicates 

that the appropriate test is a functional 

one. It is triggered when a service 

replaces a portion of traditional 

telephone service, i.e., all or some of the 

components, or functions, of the service. 

Because the statutory phrase includes 

the word ‘‘substantial,’’ we will require 

the functions being replaced to be a 

significant or substantial function of 

traditional telephone service. 

10. As we explained in the NPRM, the 

legacy local telephone exchange 

network served two distinct purposes at 

the time CALEA was enacted: it 

provided POTS, which enabled 

customers to make telephone calls to 

other customers within a defined local 

service area; and it was the primary, if 

not the only, conduit (i.e., transmission 

facility) used to access many non-local 

exchange services such as long distance 

services, enhanced services, and the 

Internet. The legislative history 

indicates that Congress intended 

CALEA to cover both the ability to 

‘‘make, receive and direct calls’’ (i.e., the 

POTS functionality) and the 

transmission facilities that provide 

access to other services (i.e., the access 

conduit functionality). In 1994, this 

transmission function was commonly 

provided by dial-up Internet access, 

which shows that Congress did not 

mean to limit CALEA’s scope to voice 

service alone. We therefore agree with 

DOJ that the language ‘‘substantial 

portion of the local telephone exchange 

service’’ includes both the POTS service 

and the transmission conduit 

functionality provided by local 

telephone exchange service in 1994. 

Commenters have not persuaded us 

otherwise. 

11. The SRP’s third component 

requires that the Commission find that 

‘‘it is in the public interest to deem 

* * * a person or entity to be a 

telecommunications carrier for purposes 

of [CALEA]’’ once that entity has met 

the first and second components of the 

SRP. We sought comment in the NPRM 

59666 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

on how to define the ‘‘public interest’’

for purposes of CALEA, as the statute 

does not explicitly define the term. We 

noted that the House Report specifically 

identified three factors for the 

Commission to consider, at a minimum, 

in making its public interest 

determination under the SRP: whether 

deeming an entity a telecommunications 

carrier would ‘‘promote competition, 

encourage the development of new 

technologies, and protect public safety 

and national security.’’ Based on the 

record before us, we conclude that it is 

appropriate to rely primarily on these 

three factors when making our public 

interest determination for purposes of 

the SRP. We find that consideration of 

these three factors balances the goals of 

competition and innovation with the 

needs of law enforcement. 

12. CALEA Definition of ‘‘Information 

Services.’’ As we explained in the 

NPRM, the treatment of information 

services under CALEA is different from 

the treatment such services have been 

afforded under the Communications 

Act. In keeping with the legislative 

history of the Communications Act, the 

Commission interprets that Act’s 

definitions of ‘‘telecommunications 

service’’ and ‘‘information service’’ to be 

mutually exclusive. Moreover, because 

the definition of ‘‘telecommunications 

service’’ focuses on the character of a 

provider’s ‘‘offering * * * to the 

public,’’ the Commission has concluded 

that the classification of a particular 

service as a telecommunications service 

or an information services ‘‘turns on the 

nature of the functions that the end user 

is offered.’’ Additionally, the 

Communications Act’s definition of 

‘‘telecommunications’’ ‘‘only includes 

transmissions that do not alter the form 

or content of the information sent,’’ a 

definition that the Commission has 

found to exclude Internet access 

services, which ‘‘alter the format of 

information through computer 

processing applications.’’ For these 

reasons, the Commission has concluded 

that a single entity offering an integrated 

service combining basic 

telecommunications transmission with 

certain enhancements, specifically 

‘‘capabilities for generating, acquiring, 

storing, transforming, processing, 

retrieving, utilizing, or making available 

information,’’ offers only an information 

service, and not a telecommunications 

service, for purposes of the 

Communications Act if the 

telecommunications and information 

services are sufficiently intertwined. In 

other words, the Commission does not 

recognize the telecommunications 

component of an information service as 

a telecommunications service under the 

Communications Act. 

13. In contrast with the 

Communications Act, CALEA does not 

define or utilize the term 

‘‘telecommunications service,’’ it does 

not adopt the Communications Act’s 

narrow definition of 

‘‘telecommunications,’’ and it does not 

construct a definitional framework in 

which the regulatory treatment of an 

integrated service depends on its 

classification into one of two mutually 

exclusive categories, i.e., 

telecommunications service or 

information service. As a result, 

structural and definitional features of 

the Communications Act that play a 

critical role in drawing the Act’s 

regulatory dividing line between 

telecommunications service and 

information service, and that undergird 

the Commission’s resulting 

classification of integrated broadband 

Internet access service as solely an 

information service for purposes of the 

Communications Act, are absent from 

CALEA. Unlike the Communications 

Act, CALEA’s ‘‘overall statutory 

scheme’’ does not require the 

Commission to classify an integrated 

service offering as solely a 

telecommunications service or solely an 

information service depending on ‘‘the 

nature of the functions that the end user 

is offered,’’ and thus the classification of 

broadband Internet access services 

under the Communications Act is not 

controlling under CALEA. 

14. The text of the ‘‘information 

services’’ definition is entirely 

consistent with this interpretive 

approach. CALEA defines ‘‘information 

services’’ as the offering of a capability 

for manipulating and storing 

information ‘‘via telecommunications,’’

but the statutory definition does not 

resolve the question whether the 

telecommunications functionality used 

to access that capability itself falls 

within the information service category. 

Under the Communications Act’s 

similar definition of information 

service, we have resolved that ambiguity 

by concluding that the 

telecommunications component of an 

integrated information service offering 

falls within the information service 

category, but that result is not 

compelled by the text of CALEA, and 

thus the Act leaves the Commission free 

to resolve the definitional ambiguity as 

appropriate in light of CALEA’s 

purposes and the public interest, 

without being bound by the approach 

followed under the Communications 

Act. 

15. We also reach that same 

conclusion by a separate, and 

independent, route. CALEA excludes 

from its definition of 

telecommunications carrier ‘‘persons or 

entities insofar as they are engaged in 

providing information services,’’ and 

the definition of information services in 

CALEA is similar to the definition in the 

Communications Act. The SRP, 

however, adds a third category of 

services to the mix. A provider of 

communication switching or 

transmission service that is not a 

telecommunications service under the 

Communications Act is nonetheless 

deemed to be a telecommunications 

carrier under CALEA if the Commission 

finds that the service replaces a 

substantial portion of local telephone 

exchange service and it is in the public 

interest to treat the provider as a 

telecommunications carrier. To give 

significance to the SRP, this new 

category of services must include some 

aspects of services that may be 

‘‘information services’’ under the 

Communications Act. An 

‘‘irreconcilable tension’’ would occur if 

the Commission rendered Congress’s 

deliberate extension of CALEA’s 

requirements to providers satisfying the 

SRP insignificant by simply applying its 

Communications Act interpretation of 

‘‘information services’’ to CALEA. 

Consequently, to resolve that tension in 

a manner that the Commission 

determines best reflects Congressional 

intent under CALEA as well as the text 

of the statute, a service classified as an 

‘‘information service’’ under the 

Communications Act may not, in all 

respects, be classified as an 

‘‘information service’’ under CALEA. 

16. In addition to constituting the 

most reasonable construction of the 

statutory text, this conclusion is further 

bolstered by an examination of the 

legislative history. The House Report’s 

discussion of information services and 

information service providers for 

CALEA purposes pertains only to the 

enhancements to the transmission 

capability underlying the service, that 

is, the computing capabilities that 

transform the service from a 

‘‘telecommunications service’’ under the 

Communications Act and the 

corresponding Commission rules into an 

‘‘information service.’’ For example, in 

discussing privacy concerns and the 

scope of CALEA, the House Report 

indicates that ‘‘electronic mail 

providers, on-line service providers, and 

Internet service providers are not 

subject to CALEA.’’ The House Report 

goes on to indicate, however, that while 

the storage of an e-mail message falls 

within CALEA’s Information Services 

Exclusion, the transmission of an e-mail 

Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 59667 

message is subject to CALEA. Similarly, 

the House Report indicates that a 

portion of voice mail service is also 

covered by CALEA: ‘‘the ‘redirection’ of 

a voice mail message is covered by 

CALEA, while the storage of the 

message is not.’’ If an information 

service for purposes of CALEA mirrored 

the definition and treatment of an 

information service under the 

Communications Act, CALEA would 

never have been able to reach the 

transmission of all e-mails or voice 

mails even when CALEA was enacted. 

17. That conclusion is further 

supported by CALEA’s structure. 

CALEA establishes a general rule that 

telecommunications carriers (including 

those covered by the SRP) are subject to 

CALEA’s assistance capability 

requirements. Information services are 

an exception to that general rule. It is a 

well recognized principle of statutory 

construction that ‘‘[w]here a general 

provision in a statute has certain limited 

exceptions, all doubts should be 

resolved in favor of the general 

provision rather than the exceptions.’’

Accordingly, it is appropriate to give the 

Information Services Exclusion a 

narrow construction in order to give full 

effect to CALEA’s general rule. 

18. We thus find that the 

classification of a service as an 

information service under the 

Communications Act does not 

necessarily compel a finding that the 

service falls within CALEA’s 

Information Service Exclusion. 

Decisions about the applicability of 

CALEA must be based on CALEA’s 

definitions alone, not on the definitions 

in the Communications Act. Equally 

important, the classification of a service 

provider as a telecommunications 

carrier under CALEA’s SRP does not 

limit the Commission’s options for 

classifying that provider or service 

under the Communications Act. In the 

sections below, we apply this legal 

framework to providers of facilitiesbased broadband Internet access and 

interconnected VoIP services. 

19. Applicability of CALEA to 

Broadband Internet Access Services. In 

this section, we find that facilities-based 

providers of any type of broadband 

Internet access service, including but 

not limited to wireline, cable modem, 

satellite, wireless, fixed wireless, and 

broadband access via powerline are 

subject to CALEA. In finding these 

providers to be subject to CALEA under 

the SRP, we reiterate that we do not 

disturb the Commission’s prior 

decisions that CALEA unambiguously 

applies to all ‘‘common carriers offering 

telecommunications services for sale to 

the public,’’ as so classified under the 

Communications Act. Thus, to the 

extent that any facilities-based 

broadband Internet access service 

provider chooses to offer such service 

on a common carrier basis, that provider 

is subject to CALEA pursuant to section 

102(8)(A), the Common Carrier 

Provision. 

20. Applying the legal framework set 

forth above, we determine that facilitiesbased broadband Internet access 

providers satisfy each of the three 

prongs of the SRP: (1) They are 

providing a switching or transmission 

functionality; (2) this functionality is a 

replacement for a substantial portion of 

the local telephone exchange service, 

specifically, the portion used for dial-up 

Internet access; and (3) public interest 

factors weigh in favor of subjecting 

broadband Internet access services to 

CALEA. 

21. Broadband Internet Access Service 

Providers Are ‘‘Telecommunications 

Carriers’’ Under CALEA: Broadband 

Internet Access Service Includes 

Switching or Transmission. We find that 

facilities-based broadband Internet 

access service providers are ‘‘engaged in 

providing wire or electronic 

communication switching or 

transmission service’’ and therefore 

meet the first prong of the SRP. As 

discussed above, we interpret the 

‘‘switching or transmission’’ component 

of the SRP broadly to capture not only 

transmission or transport capabilities, 

but also new packet-based equipment 

and functionalities that direct 

communications to their intended 

destinations. No commenter suggests 

that facilities-based broadband Internet 

access providers do not provide a 

transmission or transport function. 

Indeed, commenters providing 

broadband Internet access service today 

describe the underlying transport 

component of their service as 

‘‘switching and forwarding data.’’

22. Broadband Internet Access Service 

Replaces a Substantial Portion of the 

Local Telephone Exchange Service. We 

next conclude that facilities-based 

broadband Internet access service 

providers provide a replacement for a 

substantial portion of the local 

telephone exchange service, 

specifically, the portion of local 

telephone exchange service that 

provides subscribers with dial-up 

Internet access capability. Broadband 

Internet access service unquestionably 

‘‘replaces’’ a portion of the functionality 

that the traditional local telephone 

exchange service provides—namely, the 

ability to access the Internet. CALEA’s 

legislative history supports our 

conclusion that broadband Internet 

access service was intended to be 

covered by CALEA, as are both dial-up 

and common carrier DSL transport 

services. That history explains the 

distinction between the portion of email service that was subject to CALEA 

(a service that was accessible only over 

the Internet) and the portion that was 

not. The only way that the 

‘‘transmission of an E-mail message’’

could have been captured under CALEA 

in 1994 was through the dial-up 

facilities and capabilities of narrowband 

local telephone exchange service. Thus, 

to the extent that dial-up capabilities are 

‘‘replaced’’ today by broadband Internet 

access service, we ensure that the 

‘‘transmission of an E-mail message’’

continues to be subject to CALEA by 

finding that the SRP covers the 

transmission component of broadband 

Internet access service. 

23. Public Interest Factors Weigh in 

Favor of Subjecting Broadband Internet 

Access Service to CALEA. We further 

find that it is in the public interest to 

deem facilities-based broadband 

Internet access service providers to be 

‘‘telecommunications carriers’’ for 

purposes of CALEA under the SRP. The 

public interest factors that we consider 

in reaching this determination—the 

effect on competition, the development 

and provision of new technologies and 

services, and public safety and national 

security—on balance, support this 

finding. 

24. One of the cornerstones of the 

Commission’s broadband policy is 

achieving the goal of developing a 

consistent regulatory framework across 

all broadband platforms by treating 

providers in the same manner with 

respect to broadband services providing 

similar functionality. Because all 

facilities-based providers of broadband 

Internet access services will be covered 

by CALEA, our finding today will have 

no skewing effect on competition. In 

addition, covering all broadband 

Internet access service providers 

prevents migration of criminal activity 

onto less regulated platforms. 

25. We further determine that our 

actions today will not hinder the 

development of new services and 

technologies. While our action today 

brings much needed certainty to the 

application of CALEA to the 

development of new services and 

technologies, it does not favor any 

particular technology over another. 

Furthermore, nothing in this item will 

substantially change the deployment 

incentives currently faced by providers. 

Broadband Internet access service 

providers today are already subject to a 

number of electronic surveillance 

statutes that compel their cooperation 

with law enforcement agencies. In 

59668 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

addition, it has been over a year since 

the Commission issued its tentative 

conclusion that broadband Internet 

access service providers would be 

covered by CALEA. During that time, 

we have seen an increase in broadband 

build-out, undermining any arguments 

that development of these systems 

would be stifled. In contrast, many 

commenters have indicated they are 

currently cooperating with law 

enforcement agencies to provide 

CALEA-like capabilities today. 

26. The overwhelming importance of 

CALEA’s assistance capability 

requirements to law enforcement efforts 

to safeguard homeland security and 

combat crime weighs heavily in favor of 

the application of CALEA obligations to 

all facilities-based broadband Internet 

access service providers. It is clearly not 

in the public interest to allow terrorists 

and criminals to avoid lawful 

surveillance by law enforcement 

agencies by using broadband Internet 

access services as a substitute for dialup service. 

27. Finally, in finding CALEA’s SRP 

to cover facilities-based providers of 

broadband Internet access service, we 

conclude that establishments that 

acquire broadband Internet access 

service from a facilities-based provider 

to enable their patrons or customers to 

access the Internet from their respective 

establishments are not considered 

facilities-based broadband Internet 

access service providers subject to 

CALEA under the SRP. We note, 

however, that the provider of 

underlying facilities to such an 

establishment would be subject to 

CALEA, as discussed above. 

Furthermore, providers of Personal Area 

Networks (e.g., cordless phones, PDAs, 

home gateways) are not intended to be 

covered by our actions today. We find 

that these services are akin to private 

networks, which are excluded from 

CALEA requirements. 

28. CALEA’s Information Services 

Exclusion Does Not Apply to Broadband 

Internet Access Providers. We find that 

providers of broadband Internet access 

service are not relieved of CALEA 

obligations as a result of CALEA’s 

Information Services Exclusion. As we 

have noted, our interpretation of the 

term information services in CALEA 

differs from our interpretation of that 

term in the Communications Act. Thus, 

the fact that broadband Internet access 

service may be classified as an 

information service under the 

Communications Act does not 

determine its classification for CALEA 

purposes. The appropriate focus of our 

analysis must be on the meaning of the 

term in CALEA, and for that, as we have 

explained, we look to the text of CALEA 

and its legislative history for guidance. 

As noted above, the legislative history 

indicates that under CALEA, 

telecommunications components are 

separable for regulatory purposes from 

information service components within 

a single service. 

29. Our interpretation of the 

relationship between information 

services under the Communications Act 

and the Information Services Exclusion 

under CALEA does not eviscerate the 

Information Services Exclusion, as 

certain commenters claim. Rather, this 

approach gives meaning to the 

Information Services Exclusion, as 

intended by Congress, while reconciling 

the fact that Congress included the SRP 

specifically to empower the 

Commission to bring services such as 

broadband Internet access within 

CALEA’s reach if appropriate. A 

facilities-based broadband Internet 

access service provider continues to 

have no CALEA obligations with respect 

to, for example, the storage functions of 

its e-mail service, its web-hosting and 

DNS lookup functions or any other ISP 

functionality of its Internet access 

service. It is only the ‘‘switching and 

transmission’’ component of its service 

that is subject to CALEA under our 

finding today. 

30. Applicability of CALEA to VoIP 

Services. We conclude that CALEA 

applies to providers of ‘‘interconnected 

VoIP services,’’ which include those 

VoIP services that: (1) Enable real-time, 

two-way voice communications; (2) 

require a broadband connection from 

the user’s location; (3) require IPcompatible customer premises 

equipment; and (4) permit users to 

receive calls from and terminate calls to 

the PSTN. We find that providers of 

interconnected VoIP services satisfy 

CALEA’s definition of 

‘‘telecommunications carrier’’ under the 

SRP and that CALEA’s Information 

Services Exclusion does not apply to 

interconnected VoIP services. To be 

clear, a service offering is 

‘‘interconnected VoIP’’ if it offers the 

capability for users to receive calls from 

and terminate calls to the PSTN; the 

offering is covered by CALEA for all 

VoIP communications, even those that 

do not involve the PSTN. Furthermore, 

the offering is covered regardless of how 

the interconnected VoIP provider 

facilitates access to and from the PSTN, 

whether directly or by making 

arrangements with a third party. 

31. In reaching our conclusion, we 

abandon the distinction the NPRM drew 

between ‘‘managed’’ and ‘‘nonmanaged’’ VoIP services as the dividing 

line between VoIP services that are 

covered by CALEA and those that are 

not. The record has overwhelmingly 

convinced us that this distinction is 

unadministrable; even DOJ expressed an 

openness to a different way of 

identifying those VoIP services that 

CALEA covers. We find that using 

‘‘interconnected VoIP services’’ to 

define the category of VoIP services that 

are covered by CALEA provides a 

clearer, more easily identifiable 

distinction that is consistent with recent 

Commission orders addressing the 

appropriate regulatory treatment of IPenabled services. Interconnected VoIP 

services today include many of the 

types of VoIP offerings that DOJ’s 

Petition indicates should be covered by 

CALEA, and is thus responsive to DOJ’s 

needs at this time. 

32. Interconnected VoIP Providers Are 

‘‘Telecommunications Carriers’’ Under 

CALEA: Interconnected VoIP Includes 

Switching or Transmission. We find that 

providers of interconnected VoIP satisfy 

the three prongs of the SRP under 

CALEA’s definition of 

‘‘telecommunications carrier.’’ First, 

these providers are ‘‘engaged in 

providing wire or electronic 

communication switching or 

transmission services.’’ As we have 

explained, we interpret the term 

‘‘switching’’ in the CALEA definition of 

‘‘telecommunications carrier’’ to include 

‘‘routers, softswitches, and other 

equipment that may provide addressing 

and intelligence functions for packetbased communications to manage and 

direct the communications along to 

their intended destinations.’’

Interconnected VoIP service providers 

use these technologies to enable their 

subscribers to make, receive, and direct 

calls. The record reflects that any VoIP 

provider that is interconnected to the 

PSTN ‘‘must necessarily’’ use a router or 

other server to do so. Thus, even VoIP 

providers that do not own their own 

underlying transmission facilities 

nonetheless are engaged in providing 

‘‘switching’’ services to their customers. 

33. Interconnected VoIP Replaces a 

Substantial Portion of the Local 

Telephone Exchange Service. Second, 

interconnected VoIP satisfies the 

‘‘replacement for a substantial portion of 

the local telephone exchange service’’

prong of the SRP because it replaces the 

legacy POTS service functionality of 

traditional local telephone exchange 

service. As we explained in our recent 

VoIP E911 Order (70 FR 37273, June 29, 

2005), customers who purchase 

interconnected VoIP service receive a 

service that ‘‘enables a customer to do 

everything (or nearly everything) the 

customer could do using an analog 

telephone.’’ We determine that a service 

Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 59669 

that is increasingly used to replace 

analog voice service is exactly the type 

of service that Congress intended the 

SRP to reach. 

34. Public Interest Factors Weigh in 

Favor of Subjecting Interconnected VoIP 

Providers to CALEA. Finally, we find 

that it is in the public interest to deem 

an interconnected VoIP service provider 

a telecommunications carrier for 

purposes of CALEA. In reaching this 

conclusion, we examine the three 

prongs of the public interest analysis 

that the NPRM proposed to consider: 

promotion of competition, 

encouragement of the development of 

new technologies, and protection of 

public safety and national security. 

These three factors compel a finding 

that CALEA should apply to 

interconnected VoIP. First, our finding 

today will not have a deleterious effect 

on competition because all providers of 

interconnected VoIP will be covered by 

CALEA. Singling out certain 

technologies or categories of 

interconnected VoIP providers would be 

more harmful to competition than 

applying CALEA requirements to all 

providers of interconnected VoIP 

services, as we do today. Second, we are 

confident that our decision today will 

not discourage the development of new 

technologies and services. 

Interconnected VoIP providers are 

already obligated to cooperate with law 

enforcement agencies under separate 

electronic surveillance laws. We have 

seen no evidence that these 

requirements have deterred the 

development of new VoIP technologies 

and services in the period of time since 

the Commission issued its tentative 

conclusion that some types of VoIP 

service are covered by CALEA. Instead, 

we have seen an increasing effort on the 

part of many interconnected VoIP 

providers to develop CALEA 

capabilities, and the record indicates 

that VoIP providers are already 

modifying their operations to ensure 

that they are able to comply with 

CALEA. Industry solutions appear to be 

readily available. Finally, the protection 

of public safety and national security 

compels us to apply CALEA to 

interconnected VoIP service providers. 

Excluding interconnected VoIP from 

CALEA coverage could significantly 

undermine law enforcement’s 

surveillance efforts. Further, broadband 

Internet access providers alone might 

not have reasonable access to all of the 

information that law enforcement needs. 

Specifically, call management 

information (such as call forwarding 

and conference call features) and call 

set-up information (such as real-time 

speed dialing information and post-dial 

digit extraction information) are 

unlikely to be reasonably available to a 

broadband Internet access provider. The 

record thus indicates that the broadband 

Internet access provider and the 

interconnected VoIP provider must both 

be covered by CALEA in order to ensure 

that law enforcement agencies’

surveillance needs are met. 

35. CALEA’s Information Services 

Exclusion Does Not Apply to 

Interconnected VoIP. We find that 

interconnected VoIP service is not 

subject to the Information Services 

Exclusion in CALEA. The regulatory 

classification of interconnected VoIP 

under the Communications Act is not 

determinative with regard to this 

inquiry. Indeed, the Commission has yet 

to determine the statutory classification 

of providers of interconnected VoIP for 

purposes of the Communications Act, 

but nowhere does CALEA require such 

a determination before analyzing a 

service provider under the SRP. Instead, 

the appropriate focus is on the meaning 

of the term in CALEA. As we have 

explained, CALEA’s legislative history 

contains much discussion of 

‘‘information services,’’ but not once did 

Congress contemplate that any type of 

voice service would fall into that 

category. Most significantly, Congress 

explicitly distinguished between 

‘‘information services’’ that are not 

covered by CALEA and ‘‘services or 

facilities that enable the subscriber to 

make, receive or direct calls,’’ which are 

covered. Congress intended the 

capability to make what appear to the 

consumer to be ordinary voice calls—

regardless of the technology involved—

to fall outside the category of excluded 

information services under CALEA. 

36. Scope of Commission Action. Our 

action in this 1st R&O is limited to 

establishing that CALEA applies to 

facilities-based broadband Internet 

access providers and interconnected 

VoIP service providers. The NPRM 

raised important questions regarding the 

ability of broadband Internet access 

providers and VoIP providers to provide 

all of the capabilities that are required 

by section 103 of CALEA, including 

what those capability requirements 

mean in a broadband environment. The 

NPRM also sought comment on a variety 

of issues relating to identification of 

future services and entities subject to 

CALEA, compliance extensions, cost 

recovery, and enforcement. We will 

address all of these matters in a future 

order. Because we acknowledge that 

providers need a reasonable amount of 

time to come into compliance with all 

relevant CALEA requirements, we 

establish a deadline of 18 months from 

the effective date of this 1st R&O, by 

which time newly covered entities and 

providers of newly covered services 

must be in full compliance. 

Final Paperwork Reduction Act 

Analysis 

37. This document does not contain 

proposed information collection(s) 

subject to the Paperwork Reduction Act 

of 1995 (PRA), Public Law 104–13. In 

addition, therefore, it does not contain 

any new or modified ‘‘information 

collection burden for small business 

concerns with fewer than 25 

employees,’’ pursuant to the Small 

Business Paperwork Relief Act of 2002, 

Public Law 107–198, see 44 U.S.C. 

3506(c)(4). 

Final Regulatory Flexibility 

Certification 

38. As required by the Regulatory 

Flexibility Act of 1980, as amended 

(RFA), an Initial Regulatory Flexibility 

Analysis (IRFA) was incorporated in the 

NPRM in this proceeding. The 

Commission sought written public 

comment on the proposals in the NPRM, 

including comment on the IRFA. This 

Final Regulatory Flexibility Certification 

(FRFC) is limited to the matters raised 

in the NPRM relating to the 

applicability of CALEA to providers of 

broadband Internet access services and 

VoIP services. The present FRFC 

addresses comments on the IRFA 

concerning only those issues and 

conforms to the RFA. 

1. Need for, and Objectives of, the Rules 

39. Advances in technology, most 

notably the introduction of digital 

transmission and processing techniques 

and the proliferation of wireless and 

Internet services such as broadband 

Internet access services and VoIP, have 

challenged the ability of the law 

enforcement agencies (LEAs) to conduct 

lawful surveillance. In light of these 

difficulties, the Department of Justice, 

the Federal Bureau of Investigation, and 

the Drug Enforcement Administration 

(collectively, DOJ) filed a joint petition 

for expedited rulemaking in March 

2004. In its petition, DOJ asked the 

Commission immediately to declare that 

broadband Internet access services and 

VoIP services are covered by CALEA. 

40. In this 1st R&O, we conclude that 

facilities-based broadband Internet 

access providers and providers of 

interconnected VoIP service are subject 

to CALEA as telecommunications 

carriers under CALEA’s Substantial 

Replacement Provision (SRP). Because 

we acknowledge that providers need a 

reasonable amount of time to come into 

compliance with all relevant CALEA 

59670 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

requirements, we establish a deadline of 

18 months from the effective date of the 

1st R&O, by which time newly covered 

entities and providers of newly covered 

services must be in full compliance. 

This 1st R&O is the first critical step 

needed to apply CALEA obligations to 

new technologies and services that are 

increasingly relied upon by the 

American public to meet their 

communications needs. 

2. Summary of Significant Issues Raised 

by Public Comments in Response to the 

IRFA 

41. 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 1st R&O and 

are also summarized in part E, below. 

42. The Office of Advocacy, U.S. 

Small Business Administration (SBA) 

and the National Telecommunications 

Cooperative Association (NTCA) filed 

comments directly in response to the 

IRFA. We note that both commenters 

raise various concerns about issues that 

were raised in the NPRM in this 

proceeding but are not addressed in this 

1st R&O. In this FRFC, we address their 

comments only to the extent that they 

relate to the applicability of CALEA’s 

SRP to broadband Internet access and 

VoIP service, as all other concerns will 

be addressed in the subsequent order. 

43. We reject SBA’s argument that the 

Commission failed to analyze the 

compliance requirements and impacts 

on small carriers in the IRFA. The SBA 

argues that this failure made it difficult 

for small entities to comment on 

possible ways to minimize any impact. 

Although the Commission did not list 

the exact costs, in the NPRM we 

identified all the potential carriers that 

may be required to be CALEA compliant 

under the SRP, described in great detail 

what these carriers would be required to 

do if they were subject to CALEA, and 

requested comment on how the 

Commission could address the needs of 

small businesses. Indeed, far from 

discouraging small entities from 

participating, the NPRM elicited 

extensive comment on issues affecting 

small businesses. Therefore, we believe 

that small entities received sufficient 

notice of the implications of CALEA 

compliance addressed in today’s 1st 

R&O, and a revised IRFA is not 

necessary. 

44. We also reject NTCA and SBA’s 

contention that the Commission failed 

to include in the IRFA significant 

alternatives to minimize burdens on 

small entities. First, NTCA argues that 

the Commission failed to identify in the 

IRFA that small entities may be 

exempted under the SRP’s public 

interest clause. In the NPRM, however, 

we asked for comment as to whether 

there are discrete groups of entities for 

which the public interest may not be 

served by including them under the 

SRP. We noted that small businesses 

that provide wireless broadband 

Internet access to rural areas may be one 

example of such a discrete group. In 

response to the NPRM, several small 

carriers filed comments claiming that 

the public interest would not be served 

by subjecting these providers to CALEA 

under the SRP. Second, SBA claims the 

Commission failed to identify in the 

IRFA the option of granting an extended 

transition period for small carriers. In 

the NPRM, however, we specifically 

invited comment from all entities on the 

appropriate amount of time to give 

newly covered entities to comply with 

CALEA. While we recognize that we did 

not specifically list in the IRFA the 

potential exclusion of small businesses 

under the SRP’s public interest clause or 

the option of extending the time period 

for small carriers, the IRFA in this 

proceeding combined with the NPRM 

appropriately identified all the ways in 

which the Commission could lessen the 

regulatory burdens on small businesses 

in compliance with our RFA 

obligations. 

3. Description and Estimate of the 

Number of Small Entities to Which 

Rules Will Apply 

45. As required by the Regulatory 

Flexibility Act of 1980, as amended 

(RFA), an Initial Regulatory Flexibility 

Analysis (IRFA) was incorporated in the 

NPRM in this proceeding. The 

Commission sought written public 

comment on the proposals in the NPRM, 

including comment on the IRFA. This 

present FRFC is limited to the matters 

raised in the NPRM relating to the 

applicability of Communications 

Assistance for Law Enforcement Act 

(CALEA) to providers of broadband 

Internet access services and VoIP 

services. The present FRFC addresses 

comments on the IRFA concerning only 

those issues and conforms to the RFA. 

a. Telecommunications Service Entities 

46. Wireline Carriers and Service 

Providers. We have included small 

incumbent local exchange carriers in 

this present RFA analysis. As noted 

above, a ‘‘small business’’ under the 

RFA is one that, inter alia, meets the 

pertinent small business size standard 

(e.g., a telephone communications 

business having 1,500 or fewer 

employees), and ‘‘is not dominant in its 

field of operation.’’ The SBA’s Office of 

Advocacy contends that, for RFA 

purposes, small incumbent local 

exchange carriers are not dominant in 

their field of operation because any such 

dominance is not ‘‘national’’ in scope. 

We have therefore included small 

incumbent local exchange carriers in 

this RFA analysis, although we 

emphasize that this RFA action has no 

effect on Commission analyses and 

determinations in other, non-RFA 

contexts. 

47. Incumbent Local Exchange 

Carriers (LECs). 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, such a business is 

small if it has 1,500 or fewer employees. 

According to Commission data, 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. 

48. 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. According to 

Commission data, 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 

Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 59671 

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. 

49. 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. According to 

Commission data, 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, limited 

preliminary census data for 2002 

indicate that the total number of wired 

communications carriers increased 

approximately 34 percent from 1997 to 

2002. 

50. 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. According to 

Commission data, 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. 

51. 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. According to 

Commission data, 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. 

52. 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. According to Commission 

data, 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. 

53. Wireless Telecommunications 

Service Providers. 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. 

54. Wireless Service Providers. The 

SBA has developed a small business 

size standard for wireless firms within 

the two broad economic census 

categories of ‘‘Paging’’ and ‘‘Cellular and 

Other Wireless Telecommunications.’’

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. 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. 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. 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. 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. 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. 

55. 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.’’ 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. 

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. 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. We have estimated 

that 260 of these are small, under the 

SBA small business size standard. 

56. 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.’’ 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. 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. Thus, under 

this category and associated small 

business size standard, the majority of 

59672 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

firms can be considered small. 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. 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. The SBA has approved 

these small business size standards. An 

auction of Metropolitan Economic Area 

licenses commenced on February 24, 

2000, and closed on March 2, 2000. 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. Of those, we 

estimate that 370 are small, under the 

SBA-approved small business size 

standard. 

57. 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. 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. 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. 

58. 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. 

Under that SBA small business size 

standard, a business is small if it has 

1,500 or fewer employees. According to 

Commission data, 437 carriers reported 

that they were engaged in the provision 

of wireless telephony. We have 

estimated that 260 of these are small 

under the SBA small business size 

standard. 

59. 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. For Block F, an additional 

classification for ‘‘very small business’’

was added and is defined as an entity 

that, together with its affiliates, has 

average gross revenues of not more than 

$15 million for the preceding three 

calendar years.’’ These standards 

defining ‘‘small entity’’ in the context of 

broadband PCS auctions have been 

approved by the SBA. 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. On 

March 23, 1999, the Commission reauctioned 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 Auction 

35, including judicial and agency 

determinations, resulted in a total of 163 

C and F Block licenses being available 

for grant. 

b. Cable Operators 

60. Cable and Other Program 

Distribution. This category includes 

cable systems operators, closed circuit 

television services, direct broadcast 

satellite services, multipoint 

distribution systems, satellite master 

antenna systems, and subscription 

television services. The SBA has 

developed small business size standard 

for this census category, which includes 

all such companies generating $12.5 

million or less in revenue annually. 

According to Census Bureau data for 

1997, there were a total of 1,311 firms 

in this category, total, that had operated 

for the entire year. Of this total, 1,180 

firms had annual receipts of under $10 

million and an additional 52 firms had 

receipts of $10 million or more but less 

than $25 million. Consequently, the 

Commission estimates that the majority 

of providers in this service category are 

small businesses that may be affected by 

the rules and policies adopted herein. 

61. Cable System Operators (Rate 

Regulation Standard). The Commission 

has developed its own small business 

size standard for cable system operators, 

for purposes of rate regulation. Under 

the Commission’s rules, a ‘‘small cable 

company’’ is one serving fewer than 

400,000 subscribers nationwide. The 

most recent estimates indicate that there 

were 1,439 cable operators who 

qualified as small cable system 

operators at the end of 1995. Since then, 

some of those companies may have 

grown to serve over 400,000 subscribers, 

and others may have been involved in 

transactions that caused them to be 

combined with other cable operators. 

Consequently, the Commission 

estimates that there are now fewer than 

1,439 small entity cable system 

operators that may be affected by the 

rules and policies adopted herein. 

62. Cable System Operators (Telecom 

Act Standard). 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.’’ The Commission has 

determined that there are 67,700,000 

subscribers in the United States. 

Therefore, 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. Based on available data, the 

Commission estimates that the number 

of cable operators serving 677,000 

subscribers or fewer, totals 1,450. The 

Commission neither requests nor 

collects information on whether cable 

system operators are affiliated with 

entities whose gross annual revenues 

exceed $250 million, and therefore are 

unable, at this time, to estimate more 

accurately the number of cable system 

operators that would qualify as small 

cable operators under the size standard 

contained in the Communications Act of 

1934. 

c. Internet Service Providers 

63. 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 

Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 59673 

hardware or software consulting related 

to Internet connectivity.’’ Under the 

SBA size standard, such a business is 

small if it has average annual receipts of 

$21 million or less. According to Census 

Bureau data for 1997, there were 2,751 

firms in this category that operated for 

the entire year. Of these, 2,659 firms had 

annual receipts of under $10 million, 

and an additional 67 firms had receipts 

of between $10 million and 

$24,999,999. Consequently, we estimate 

that the majority of these firms are small 

entities that may be affected by our 

action. In addition, limited preliminary 

census data for 2002 indicate that the 

total number of Internet service 

providers increased approximately five 

percent from 1997 to 2002. 

4. Description of Projected Reporting, 

Recordkeeping and Other Compliance 

Requirements 

64. The 1st R&O requires all facilitiesbased broadband Internet access 

providers and providers of 

interconnected VoIP service to be 

CALEA compliant. Our decision today 

does not impose reporting or 

recordkeeping requirements that would 

be subject to the Paperwork Reduction 

Act. Pursuant to CALEA both small and 

large carriers must design their 

equipment, facilities, and services to 

ensure that they have the required 

surveillance capabilities. We note that a 

subsequent order will address other 

important issues under CALEA, such as 

compliance extensions and exemptions, 

cost recovery, identification of future 

services and entities subject to CALEA, 

and enforcement. 

5. Steps Taken To Minimize Significant 

Economic Impact on Small Entities, and 

Significant Alternatives Considered 

65. 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. 

66. In the 1st R&O, we conclude that 

facilities-based broadband Internet 

access providers and providers of 

interconnected VoIP service are 

‘‘telecommunications carriers’’ under 

CALEA’s SRP. In arriving at these 

conclusions, the Commission first 

interprets the SRP to establish a legal 

framework for assessing services under 

CALEA, explaining the basis for all 

statutory interpretations that inform this 

framework. We then apply this 

framework to providers of facilitiesbased broadband Internet access 

services and interconnected VoIP 

services. The Commission considered 

various alternatives, which it rejected or 

accepted for the reasons set forth in the 

body of the 1st R&O. The significant 

alternatives that commenters discussed 

and that we considered in determining 

that these providers are 

‘‘telecommunications carriers’’ under 

CALEA’s SRP are as follows. 

67. Legal Framework. In the 1st R&O, 

we affirm our tentative conclusion that 

Congress intended the scope of 

CALEA’s definition of 

telecommunications carrier to be more 

inclusive than the similar definition of 

‘‘telecommunications carrier’’ in the 

Communications Act. In reaching this 

conclusion, we rejected arguments that 

the definition of ‘‘telecommunications 

carriers’’ in CALEA is functionally 

identical to the definition of that term 

in the Communications Act. While we 

recognize that a broader interpretation 

may include small entities under the 

definition, CALEA contains several 

differences that support this broader 

interpretation of the term 

‘‘telecommunications carrier’’ under 

CALEA. As noted above, the most 

significant difference is the SRP, which 

‘‘has no analogue’’ in the 

Communications Act. 

68. The SRP applies only to entities 

‘‘engaged in providing wire or electronic 

communication switching or 

transmission service.’’ We conclude that 

the term ‘‘switching’’ in this phrase 

includes ‘‘routers, softswitches, and 

other equipment that may provide 

addressing and intelligence functions 

for packet-based communications to 

manage and direct the communications 

along to their intended destinations.’’

We considered but rejected arguments 

that the term ‘‘switching’’ as used by 

Congress in 1994 did not contemplate 

routers and softswitches. For instance, 

some commenters argued that this term 

must forever be limited to that function 

as it was commonly understood in 1994, 

namely circuit switching in the 

narrowband PSTN. We believe that 

interpreting CALEA’s inclusion of the 

word ‘‘switching’’ to describe a function 

that Congress intended to be covered—

regardless of the specific technology 

employed to perform that function—is 

the interpretation most consistent with 

the purpose of the statute. The 

alternative approach would effectively 

eliminate any ability the Commission 

may have to extend CALEA obligations 

under the SRP to service providers 

using advanced digital technologies, in 

direct contravention of CALEA’s stated 

purpose. 

69. The SRP requires that the service 

provided be ‘‘a replacement for a 

substantial portion of the local 

telephone exchange service.’’ We 

affirmed our tentative conclusion that 

this requirement is satisfied if a service 

replaces any significant part of an 

individual subscriber’s functionality 

previously provided via circuitswitched local telephone exchange 

service. We considered various 

interpretations. For example, we 

considered, but declined to adopt, an 

interpretation that would require the 

service to be capable of replacing all of 

the functionalities of local exchange 

service. Instead, we agree with DOJ that 

the language ‘‘substantial portion of the 

local telephone exchange service’’

includes both the POTS service and the 

transmission conduit functionality 

provided by local telephone exchange 

service in 1994. While our 

interpretation will most likely cover 

small entities, commenters have not 

persuaded us to adopt a different 

interpretation. 

70. The SRP also requires that the 

Commission find that ‘‘it is in the public 

interest to deem * * * a person or 

entity to be a telecommunications 

carrier for purposes of [CALEA].’’ We 

conclude that the Commission will 

consider three factors in its public 

interest analysis: (1) Promotion of 

competition; (2) encouragement of the 

development of new technologies; and 

(3) protection of public safety and 

national security. We declined to 

identify any other specific public 

interest considerations, which we 

recognize might benefit small 

telecommunications carriers. 

71. We conclude, as we indicated in 

the NPRM, that the terms 

‘‘telecommunications carrier’’ and 

‘‘information services’’ in CALEA 

cannot be interpreted identically to the 

way those terms have been interpreted 

under the Communications Act in light 

of Congress’s intent and purpose in 

enacting CALEA. As explained above, 

we disagree with commenters who 

argue that we should interpret the 

statute to narrow the scope of services 

that are covered today to a more narrow 

group of services than those covered 

when CALEA was enacted, particularly 

in light of CALEA’s stated purpose to 

‘‘preserve the government’s ability to 

* * * intercept communications that 

use advanced technologies such as 

digital or wireless transmission.’’ While 

59674 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

we recognize that small entities might 

benefit by an interpretation that would 

narrow the scope of services subject to 

CALEA, we believe that decisions about 

the applicability of CALEA must be 

based on CALEA’s definitions alone, not 

on the definitions in the 

Communications Act. 

72. Facilities-Based Broadband 

Internet Access Service Providers. We 

apply our conclusions concerning the 

legal framework to providers of 

facilities-based broadband Internet 

access services and find that these 

providers are subject to CALEA under 

the SRP. In reaching this decision, we 

considered the comments by small 

carriers, which generally claimed that 

the public interest would not be served 

by subjecting these providers to CALEA 

under the SRP. Based on our analysis 

here, we decline to exclude any 

facilities-based broadband Internet 

access providers from CALEA 

requirements at this time. We agree with 

DOJ that these commenters have not 

provided sufficient evidence, identified 

the particular carriers that should be 

exempted from CALEA’s SRP, or 

addressed law enforcement’s needs. 

These telecommunications carriers have 

several options under CALEA. We 

believe that these CALEA provisions 

will safeguard small entities from any 

significant adverse economic impacts of 

CALEA compliance. 

73. Additionally, based on comments 

from these small carriers, we adopt a 

Further Notice of Proposed Rulemaking 

(FNPRM), published elsewhere in this 

issue, that seeks comment on what 

procedures the Commission should 

adopt to implement CALEA’s exemption 

provision, as well as the 

appropriateness of requiring something 

less than full CALEA compliance for 

certain classes or categories of 

providers, such as small or rural 

entities. We also seek comment on the 

best way to impose different compliance 

standards. We believe that the FNPRM 

will assist the Commission in adopting 

streamlined exemption procedures, 

which will ultimately benefit both large 

and small entities alike. The FNPRM is 

also a concerted effort by the 

Commission to adopt any other rules 

that will reduce CALEA burdens on 

small entities. We believe our approach 

represents a reasonable accommodation 

for small carriers, and we encourage 

these entities to file comments on the 

FNPRM to assist the Commission in 

these efforts. 

74. Interconnected VoIP Service. We 

apply our conclusions concerning the 

legal framework to providers of 

interconnected VoIP services and find 

that these providers are subject to 

CALEA under the SRP. We considered 

but abandoned the distinction the 

NPRM drew between ‘‘managed’’ and 

‘‘non-managed’’ VoIP services as the 

dividing line between VoIP services that 

are covered by CALEA and those that 

are not. The record convinced us that 

this distinction is unadministrable; even 

DOJ expressed an openness to a 

different way of identifying those VoIP 

services that CALEA covers. We believe 

that the alternative approach, using 

‘‘interconnected VoIP services’’ to 

define the category of VoIP services that 

are covered by CALEA, provides a 

clearer, more easily identifiable 

distinction that is consistent with recent 

Commission orders addressing the 

appropriate regulatory treatment of IPenabled services. 

75. As a result, certain VoIP service 

providers are not subject to CALEA 

obligations imposed in today’s 1st R&O. 

Specifically, the 1st R&O does not apply 

to those entities not fully interconnected 

with the PSTN. Because interconnecting 

with the PSTN can impose substantial 

costs, we anticipate that many of the 

entities that elect not to interconnect 

with the PSTN, and which therefore are 

not subject to the rules adopted in 

today’s 1st R&O, are small entities. 

Small entities that provide VoIP services 

therefore also have some control over 

whether they will have to be CALEA 

compliant. Small businesses may still 

offer VoIP service without being subject 

to the rules adopted in today’s 1st R&O 

by electing not to provide an 

interconnected VoIP service. 

76. Scope of 1st R&O. Our action in 

the 1st R&O is limited to establishing 

that CALEA applies to facilities-based 

broadband Internet access providers and 

interconnected VoIP service providers. 

As noted above, we will address in a 

subsequent order other important 

outstanding issues under CALEA, such 

as compliance extensions and 

exemptions, cost recovery, 

identification of future services and 

entities subject to CALEA, and 

enforcement. The 1st R&O establishes a 

deadline of 18 months from the effective 

date of the Order, by which time newly 

covered entities and providers of newly 

covered services must be in full 

compliance with CALEA. We 

considered various comments 

advocating, for example, effective dates 

ranging from 12 months to 24 months. 

We also considered whether the 

Commission should grant additional 

time for small carriers to become 

CALEA compliant. However, as 

explained above, we find that 18 

months is a reasonable time period to 

expect all providers of facilities-based 

broadband Internet access service and 

interconnected VoIP service to comply 

with CALEA. This alternative represents 

a reasonable accommodation for small 

entities and others, as these newly 

covered entities can begin planning to 

incorporate CALEA compliance into 

their operations. Furthermore, this 

approach will ensure that the 

appropriate parties become involved in 

ongoing discussions among the 

Commission, law enforcement, and 

industry representatives to develop 

standards for CALEA capabilities and 

compliance. 

77. Report to Congress: The 

Commission will send a copy of the 1st 

R&O, including this FRFC, in a report to 

be sent to Congress and the Government 

Accountability Office pursuant to the 

Congressional Review Act. In addition, 

the Commission will send a copy of the 

1st R&O, including this FRFC, to the 

Chief Counsel for Advocacy of the SBA. 

Ordering Clauses 

78. Accordingly, it is ordered 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 

Report and Order in ET Docket No. 04–

295 is adopted. 

79. It is further ordered that the 

Commission’s Consumer and 

Governmental Affairs Bureau, Reference 

Information Center, shall send a copy of 

this Report and Order, including the 

Final Regulatory Flexibility 

Certification, to the Chief Counsel for 

Advocacy of the Small Business 

Administration. 

List of Subjects in 47 CFR Part 64 

Broadband Internet access services, 

Interconnected voice over Internet 

protocol services, Telecommunications, 

Telephone. 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

Final Rules 

■ For the reasons discussed in the 

preamble, the Federal Communications 

Commission amends 47 CFR part 64 to 

read 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, 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. 

Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 59675 

■ 2. Section 64.2102 is amended by 

adding paragraph (d) to read as follows: 

§ 64.2102 Definitions. 

* * * * * 

(d) 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. 

[FR Doc. 05–20606 Filed 10–12–05; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 041126332–5039–02; I.D. 

100605C] 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Atka Mackerel in the 

Western Aleutian District of the Bering 

Sea and Aleutian Islands Management 

Area 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS is prohibiting directed 

fishing for Atka mackerel in the Western 

Aleutian District of the Bering Sea and 

Aleutian Islands management area 

(BSAI). This action is necessary to 

prevent exceeding the 2005 Atka 

mackerel total allowable catch (TAC) in 

the Western Aleutian District of the 

BSAI. 

DATES: Effective 1200 hrs, Alaska local 

time (A.l.t.), October 7, 2005, through 

2400 hrs, A.l.t., December 31, 2005. 

FOR FURTHER INFORMATION CONTACT: Josh 

Keaton, 907–586–7228. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fishery in the 

BSAI according to the Fishery 

Management Plan for Groundfish of the 

Bering Sea and Aleutian Islands 

Management Area (FMP) prepared by 

the North Pacific Fishery Management 

Council under authority of the 

Magnuson-Stevens Fishery 

Conservation and Management Act. 

Regulations governing fishing by U.S. 

vessels in accordance with the FMP 

appear at subpart H of 50 CFR part 600 

and 50 CFR part 679. 

The 2005 Atka mackerel TAC in the 

Western Aleutian District of the BSAI is 

18,500 metric tons (mt) as established 

by the 2005 and 2006 final harvest 

specifications for groundfish in the 

BSAI (70 FR 8979, February 24, 2005). 

In accordance with § 679.20(d)(1)(i), 

the Administrator, Alaska Region, 

NMFS (Regional Administrator), has 

determined that the 2005 Atka mackerel 

TAC in the Western Aleutian District of 

the BSAI will soon be reached. 

Therefore, the Regional Administrator is 

establishing a directed fishing 

allowance of 18,450 mt, and is setting 

aside the remaining 50 mt as bycatch to 

support other anticipated groundfish 

fisheries. In accordance with 

§ 679.20(d)(1)(iii), the Regional 

Administrator finds that this directed 

fishing allowance has been reached. 

Consequently, NMFS is prohibiting 

directed fishing for Atka mackerel in the 

Western Aleutian District of the BSAI. 

After the effective date of this closure 

the maximum retainable amounts at 

§§ 679.20(e) and (f) apply at any time 

during a trip. 

Classification 

This action responds to the best 

available information recently obtained 

from the fishery. The Assistant 

Administrator for Fisheries, NOAA 

(AA), finds good cause to waive the 

requirement to provide prior notice and 

opportunity for public comment 

pursuant to the authority set forth at 5 

U.S.C. 553(b)(B) as such requirement is 

impracticable and contrary to the public 

interest. This requirement is 

impracticable and contrary to the public 

interest as it would prevent NMFS from 

responding to the most recent fisheries 

data in a timely fashion and would 

delay the closure of Atka mackerel in 

the Western Aleutian District of the 

BSAI. NMFS was unable to publish a 

notice providing time for public 

comment because the most recent, 

relevant data only became available as 

of October 5, 2005. 

The AA also finds good cause to 

waive the 30-day delay in the effective 

date of this action under 5 U.S.C. 

553(d)(3). This finding is based upon 

the reasons provided above for waiver of 

prior notice and opportunity for public 

comment. 

This action is required by § 679.20 

and is exempt from review under 

Executive Order 12866. 

Authority: 16 U.S.C. 1801 et seq. 

Dated: October 6, 2005. 

Alan D. Risenhoover, 

Acting Director, Office of Sustainable 

Fisheries, National Marine Fisheries Service. 

[FR Doc. 05–20541 Filed 10–7–05; 2:30 pm] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 041126332–5039–02; I.D. 

100605B] 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Pacific Ocean Perch 

in the Western Aleutian District of the 

Bering Sea and Aleutian Islands 

Management Area 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS is prohibiting directed 

fishing for Pacific ocean perch in the 

Western Aleutian District of the Bering 

Sea and Aleutian Islands management 

area (BSAI). This action is necessary to 

prevent exceeding the 2005 Pacific 

ocean perch total allowable catch (TAC) 

in the Western Aleutian District of the 

BSAI. 

DATES: Effective 1200 hrs, Alaska local 

time (A.l.t.), October 8, 2005, through 

2400 hrs, A.l.t., December 31, 2005. 

FOR FURTHER INFORMATION CONTACT: Josh 

Keaton, 907–586–7228. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fishery in the 

BSAI according to the Fishery 

Management Plan for Groundfish of the 

Bering Sea and Aleutian Islands 

Management Area (FMP) prepared by 

the North Pacific Fishery Management 

Council under authority of the 

Magnuson-Stevens Fishery 

Conservation and Management Act. 

Regulations governing fishing by U.S. 

vessels in accordance with the FMP 

appear at subpart H of 50 CFR part 600 

and 50 CFR part 679. 

The 2005 Pacific ocean perch TAC in 

the Western Aleutian District of the 

BSAI is 4,703 metric tons (mt) as 

established by the 2005 and 2006 final 

harvest specifications for groundfish in