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Y2  R1~ Y2 #Xj\  P6G;[AXP# Federal Communications Commission FCC 97356  yxdddyR 8 #Xj\  P6G;[AXP#[ 0 #X\  P6G;P#Before the  yO( 03Federal Communications Commissionw 0lWashington, D.C. 20554  Xy2#Xj\  P6G;[AXP#  YK2 8  In the Matter of: ,hhh) ` `  ,hhh)  Y2Communications Assistance forhh)CC Docket No. 97213  Y2Law Enforcement Acthhh)  X 2  NOTICE OF PROPOSED RULEMAKING  Y 2 Adopted: October 2, 1997hhReleased: October 10, 1997  YN2Comment Date: December 12, 1997 Reply Date: January 12, 1998 By the Commission:  X2` ` TABLE OF CONTENTS  X2` `  ,hhhppX   Paragraph No.  X2I.INTRODUCTIONhhhppX  xx  1 H  Xh2II.BACKGROUNDhhhppX  xx  2  XQ2A.` ` The Fourth Amendment and PreCALEA  xx   X:2` ` LegislationhhhppX  xx  2  X#2B.` ` CALEAhhhppX  xx  5  X 2III.DISCUSSIONhhhppX  xx 10  X2A.` ` Definition of Telecommunications Carrier  xx 10  H(#(# X2 ` ` 1. ,BackgroundhhppX  xx 10  X2` ` 2. ,DiscussionhhppX  xx 15  X2B.` ` Carrier Security Policies and Procedures  xx 21  X2` ` 1. ,BackgroundhhppX  xx 21 H  X 2` ` 2. ,ProposalshhppX  xx 25  Xk!2C.` ` Joint BoardhhhppX  xx 39  XT"2D.` ` Adopting Technical Standards ppX  xx 40  X=#2` ` 1. ,BackgroundhhppX  xx 40  X&$2` ` 2. ,ProposalshhppX  xx 44  X%2E.` ` Requests Under the Reasonably Achievable Standard  xx 45  X%2` ` 1. ,BackgroundhhppX  xx 45"%0*''[[$"Ԍ X-` ` 2. Proposalshh, Vpp  xx-48  X-F.` ` Extension of Compliance Datepp  xx-49  X-` ` 1. Backgroundhh,Vpp  xx-49  X-` ` 2. Proposalshh,Vpp  xx-50  X-IV.PROCEDURAL MATTERSVpp  xx-51  X-A.` ` Ex Partehh,Vpp  xx-52  Xv-B.` ` Paperwork Reduction ActVpp  xx-53  X_-C.` ` Initial Regulatory Flexibility Analysispp  xx-54  XH-V.ORDERING CLAUSEShh,Vpp  xx-79 X Appendix A: Proposed Rules  X -  X -` `   I.hh,INTRODUCTION  X - I. A. 1. a.(1)(a) i) a) 1 A. 1. a.(1)(a) i) a)1.` ` In October 1994, Congress passed and the President signed the  X -Communications Assistance for Law Enforcement Act ("CALEA"). M yO -ԍ Communications Assistance for Law Enforcement Act, Pub. L. No. 103414, 108 Stat. 4279 (1994) (codified as amended in sections of 18 U.S.C. and 47 U.S.C.). The Act was designed to respond to rapid advances in telecommunications technology and eliminate obstacles faced by law enforcement personnel in conducting electronic surveillance. For purposes of this  Xb-Notice of Proposed Rulemaking ("NPRM"), "electronic surveillance" is defined as "both the interception of communications content (wiretapping) and the acquisition of callidentifying information (dialednumber information) through the use of pen register devices and through  X-traps and traces." M yO-ԍ U.S. Congress, Office of Technology Assessment, Electronic Surveillance in a Digital Age, OTABPITC149 (Washington, DC: U.S. Government Printing Office, July 1995). Pen registers capture callidentifying  yO~-information for numbers dialed from the facility that is the subject of lawful interception (i.e., outgoing calls), while trap and trace devices capture callidentifying information for numbers received by the facility that is the  yO-subject of lawful interception (i.e., incoming calls). H.R. Rep. No. 103827, 103d Cong., 2d Sess., pt. 1, at 26  yO-(1994).#Xw PE37|XP# While telecommunications carriers have been required since 1970 to  X-cooperate with law enforcement personnel in conducting electronic surveillance,M yOO-ԍ See infra paras. 24 for a discussion of the electronic surveillance statutes enacted before CALEA. CALEA for the first time requires telecommunications carriers to modify and design their equipment, facilities, and services to ensure that authorized electronic surveillance can be performed.  X-These modifications must be achieved by October 25, 1998.G ( M yO"-ԍ 47 U.S.C.  1001 at note. But see 47 U.S.C.  1006(c) (permitting a telecommunications carrier proposing to install or deploy, or having installed or deployed, any equipment, facility or service prior to October 25, 1998 to petition the Commission for one or more extensions of the deadline for complying with CALEA's capability  yO$-requirements). Any extension granted under Section 1006 may extend no later than October 24, 2000. 47"$0*%%%" U.S.C.  1006(c)(3). G CALEA also imposes"X0*%%ZZS" responsibilities on the Attorney General of the United States, equipment manufacturers, providers of telecommunications support services, standards setting bodies, and the Commission. Various amendments to Title 18 of the United States Code and the  X-Communications Act of 1934 ("the Communications Act")OXM yO-ԍ 47 U.S.C.  151 et seq.O were enacted as part of CALEA. In particular, new Section 229 of the Communications Act states that the Commission "shall prescribe such rules as are necessary to implement the Communications Assistance for Law  Xv-Enforcement Act."<vM yO -ԍ 47 U.S.C.  229.< This proceeding focuses on the responsibilities imposed specifically upon the Commission by CALEA. The rules that this Commission will adopt in this proceeding will affect vital law enforcement interests. As a consequence, the Federal Bureau of  X1-Investigation was consulted during the preparation of this NPRM."@1xM yOZ-ԍ In the Federal Bureau of Investigation's ("FBI's") Implementation of Section 109 of the Communications  yO"-Assistance for Law Enforcement Act, Rules and Regulations, 62 FR 13307 (1997), the FBI released rules  yO-implementing reimbursement regulations. In the FBI's Second Notice of Capacity, Notice of Proposed  yO-Rulemaking, 62 FR 1902 (1997), the FBI requested comment on determining electronic surveillance capacity requirements required by Section 104 of the Communications Assistance for Law Enforcement Act (CALEA).  yOB-Finally, in the FBI's Implementation of Section 109 of the Communications Assistance for Law Enforcement  yO -Act: Request for Comment on "Significant Upgrade" and "Major Modification," Advanced Notice of Proposed  yO-Rulemaking, 61 FR 58799 (1996), the FBI requested comment on the definitions of these key statutory terms. " This NPRM proposes, and seeks comment on, rules that this Commission should adopt to implement CALEA, and requests interested parties to submit proposed rules to implement CALEA.  X -` `   II.hh,BACKGROUND  X -A.THE FOURTH AMENDMENT AND PRECALEA LEGISLATION  Xy-2.` ` The Fourth Amendment to the United States Constitution protects citizens  Xb-against unreasonable searches and seizures.b M yO-ԍ U.S. Const. amend. IV. XThe right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. ƞ Prior to 1967, electronic surveillance was not"b0*%%ZZ,"  X-considered a search and seizure for purposes of the Fourth Amendment.q M yOy-ԍ See Olmstead v. United States, 277 U.S. 438, 466 (1928) (holding that wiretap interception of telephone conversations without trespass and without the physical seizure of any material object did not fall within the  yO -confines of the Fourth Amendment). But see id. at 478 (dissenting opinion of Justice Brandeis) ("[t]o protect, that right [the right to be let alone], every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment"). q In 1967, the  X-Supreme Court held in Katz v. United States,= xM yO-ԍ 389 U.S. 347 (1967).= that electronic surveillance constituted a search and seizure for purposes of the Fourth Amendment, and that the conversations of individuals  X-subjected to such eavesdropping were protected by the Constitution.M XM yOt -ԍ Id. at 353 ("[t]he Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a `search and seizure' within the meaning of the Fourth Amendment").M In an effort to balance the interests of both privacy and law enforcement, Congress responded in 1968 by enacting  X-the first electronic surveillance legislation ("1968 Act"). ( M yOf-ԍ Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90351, 82 Stat. 212 (1968). The 1968 Act established a judicial process by which law enforcement officials could obtain a court's authorization to conduct electronic surveillance. The 1968 Act also prohibited the use of electronic surveillance by  XH-private individuals.u H M yO-ԍ See H.R. Rep. No. 103827, 103d Cong., 2d Sess., pt. 1, at 11 (1994). u  X - 3.` ` In 1970, the United States Court of Appeals for the Ninth Circuit held that the 1968 Act did not require carriers to provide technical support needed to conduct judicially approved interception of wire communications, nor did the 1968 Act give courts the authority  X -to compel such action. H M yO-ԍ Application of the United States for Relief, 427 F.2d 639, 64344 (9th Cir. 1970). Congress subsequently amended the 1968 Act to require carriers to "furnish the applicant [requesting electronic surveillance] forthwith all information, facilities,  X -and technical assistance necessary to accomplish the interception."@ M yO0-ԍ 18 U.S.C.  2518(4).@ During 1986, Congress enacted electronic surveillance legislation that encompassed emerging services and  Xy-technologies,xyhM yO!-ԍ Electronics Communications Privacy Act of 1986, Pub. L. No. 99508, 100 Stat. 1872 (1986). "Electronic communication" is defined as: Xany transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectric or photooptical"$0*%%$" system that affects interstate or foreign commerce, but does not include  ` ` (A) any wire or oral communication; ` ` (B) any communication made through a toneonly paging device; ` ` (C) any communication from a tracking device (as defined in section 3117 of [Title 18]).  yO@-Id. such as electronic mail, cellular phones, and paging devices.uyM yO-ԍ See H.R. Rep. No. 103827, 103d Cong., 2d Sess., pt. 1, at 12 (1994). u "y0*%%ZZ"Ԍ  X- 4.` ` Section 705 of the Communications ActAM yO2 -ԍ 47 U.S.C.  605(a). A prohibits persons assisting in receiving or assisting in transmitting radio, or interstate or foreign wire, communications from divulging or publishing "the existence, contents, substance, purport, effect, or meaning" of  X-such communication.Z( M yO}-ԍ It has generally been the Commission's policy to refer alleged violations of Section 705 to the Department  {OE-of Justice for investigation and action.  See, e.g.,  Inquiry into Alleged Improper Activities by Southwestern Bell,  yO-Report and Order, 82 FCC 2d 322 (1980). Divulging, for purposes of Section 705, includes transmitting a  yO-message to a third person without the consent of the sender. See United States v. Gruber, 123 F.2d 307, 309 (2d Cir. 1941).Z Section 705, however, contains an exception to that prohibition for disclosures authorized by Title 18 of the United States Code. As a general matter, Title 18 only authorizes providers of wire or electronic communication services to assist law enforcement officials in intercepting communications or conducting electronic surveillance in  XH-certain felony casesHM yO-ԍ 18 U.S.C.  2516(1) (enumerated offenses include murder, kidnapping, robbery, and extortion). when a law enforcement agency gives the service provider a court order,  X1-signed by a judge of competent jurisdiction, authorizing such interception.@1jM yOL-ԍ 18 U.S.C.  2518. Under certain circumstances, a telecommunications carrier may assist in conducting electronic surveillance without a court order if a law enforcement official, specially designated by the appropriate prosecuting office, reasonably determines that an emergency situation exists. Such circumstances must meet the following criteria: (1) the nature of the emergency involves immediate danger of death or serious physical injury, conspiratorial activities threatening the national security, or conspiratorial activities characteristic of organized crime; (2) there are grounds that support the issuance of a court order; (3) there is not sufficient time available to obtain a court order; and (4) an application for a court order is made within 48 hours after the  yO-interception has occurred. Id. at  2518(7).  Providers of wire or electronic communications must assist law enforcement officials when presented with such  X -an order.F rM yO&#-ԍ 18 U.S.C.  2518(4).F The unauthorized conduct of electronic surveillance is, however, a felony.@ M yO$-ԍ 18 U.S.C.  2511(4).@ In" 0*%%ZZ# " addition, persons whose communications are unlawfully intercepted, disclosed, or used may file a civil action against persons who perform unauthorized electronic surveillance to recover  X-damages, attorneys' fees, and court costs.=M yOK-ԍ 18 U.S.C.  2520.=  X- B.CALEA  Xv-  5.` ` When it passed CALEA, Congress sought to balance three important policies: "(1) to preserve a narrowly focused capability for law enforcement agencies to carry out properly authorized intercepts; (2) to protect privacy in the face of increasingly powerful and personally revealing technologies; and (3) to avoid impeding the development of new  X -communications services and technologies."j XM yO# -ԍ H.R. Rep. No. 103827, 103d Cong., 2d Sess., pt. 1, at 13 (1994).j Congress passed CALEA to preserve the ability of law enforcement officials to conduct authorized electronic surveillance in the face of the recent, rapid technological changes in telecommunications that threaten their ability to  X -intercept communications.v M yOn-ԍ 140 Cong. Rec. H10779 (daily ed. October 7, 1994) (statement of Rep. Hyde). v Congress cited 183 cases in which new technology in telecommunications had impeded the ability of law enforcement officials to conduct electronic  X -surveillance. xM yO-ԍ Id. See also 140 Cong. Rec. H10780 (daily ed. October 7, 1994) (statement of Rep. Edwards). Call forwarding, threeway conferencing, voice recognition calling, digital features, and cellular services were specifically identified as making electronic surveillance  Xy-difficult or impossible to conduct.yM yO2-ԍ See 140 Cong. Rec. H1078183 (daily ed. October 7, 1994) (statements of Rep. Fields and Rep. Oxley).  XK- 6.` ` In addition to the proliferation of services currently offered, the increase in the sheer number of service providers further complicates efforts to conduct the authorized  X-implementation of electronic surveillance.rM yOf-ԍ H.R. Rep. No. 103827, 103d Cong., 2d Sess., pt. 1, at 15 (1994). r While carriers have been required since 1970 to cooperate with law enforcement officials' efforts to conduct courtauthorized electronic surveillance, the question of whether carriers have an affirmative obligation to design or  X-modify their systems to accommodate such surveillance has never been adjudicated.t( M yO!-ԍ See H.R. Rep. No. 103827, 103d Cong., 2d Sess., pt. 1, at 13 (1994).t CALEA for the first time imposes such an affirmative obligation upon telecommunications carriers. " 0*%%ZZ"Ԍ X-   7.` ` CALEA contains numerous provisions designed to protect privacy interests within the context of courtauthorized electronic surveillance. For example, Section 105 requires that access to callidentifying information available at a carrier's switching premises occur only in accordance with lawful authorization and the affirmative intervention of an  X-employee of the carrier acting in accordance with regulations prescribed by the Commission.M yO-ԍ 47 U.S.C.  1004. "Callidentifying information" is defined as "dialing or signaling information that identifies the origin, direction, destination, or termination of each communication generated or received by a subscriber by means of any equipment, facility, or service of a telecommunications carrier." 47 U.S.C.  1001(2). For voice communications, callidentifying information typically includes the electronic pulses, audio tones, or signaling messages transmitted as calls are routed through the carrier's network. H.R. Rep. No. 103827, 103d Cong., 2d Sess., pt. 1, at 21 (1994).  Section 207 of CALEA also increases the requirements with which law enforcement officials must comply to obtain electronic mail and other transactional data by requiring that a court  X_-order be presented, rather than the administrative subpoena that formerly sufficed.= _@M yOP-ԍ 18 U.S.C.  2703.= In addition, Sections 202 204 of CALEA extend the privacy protection of existing electronic surveillance legislation to cordless phones and certain data communications transmitted by  X -radio.@! M yO-ԍ 18 U.S.C.  2511(4).@ Section 103(a)(2)(B) of CALEA also prohibits the use of pen registers and trap and trace devices to obtain information that tracks and locates targeted subscribers; location  X -information, however, determined from the telephone number may be used.F" ` M yO-ԍ 47 U.S.C.  1002(a)(2)(B).F  X - 8.` ` Other provisions of CALEA are designed to ensure that the legitimate needs of law enforcement officials do not unduly interfere with the technological development of the telecommunications industry. For example, Section 103 explicitly provides that law enforcement agencies or officers cannot require that telecommunications carriers' networks  Xb-include "any specific equipment, facilities, services, features, or system configurations"F#b M yO-ԍ 47 U.S.C.  1002(b)(1)(A).F nor can law enforcement officials prohibit carriers from using any specific design for their  X4-networks.F$4 M yOe -ԍ 47 U.S.C.  1002(b)(1)(B).F In addition, Section 107 requires the Attorney General to consult with appropriate associations and standardssetting organizations, as well as telecommunications carriers, in the development of the technical standards that will ensure compliance with"$0*%%ZZ "  X-CALEA's capability requirements.%M yOy-ԍ 47 U.S.C.  1005(a)(2). See also infra para. 39 for a further discussion of Section 103 and the standardssetting process.  X-   9.` ` CALEA assigns certain responsibilities to the Commission and permits it, at its  X-discretion, to assume others.[& M yO-ԍ See CALEA  301(a), 47 U.S.C. 229(a).[ In this NPRM, we propose rules to implement the Commission's assigned responsibilities that include: (1) establishing regulations for telecommunications personnel on how to administer interceptions and (2) reviewing carrier petitions requesting the Commission's determination that compliance with CALEA's electronic surveillance capability requirements is not reasonably achievable. We also consider whether, and if so, how, to implement discretionary responsibilities placed on this Commission by CALEA, that include: (1) defining who is a telecommunications carrier for purposes of CALEA; (2) establishing technical requirements or standards for compliance with  X -CALEA's electronic surveillance capability requirements;U' M yOd-ԍ See discussion infra at  40.U and (3) reviewing carrier petitions seeking extension of the October 25, 1998 compliance date for Section 103 of CALEA.  X -3 III. DISCUSSION  X-A.DEFINITION OF TELECOMMUNICATIONS CARRIER  Xb-1.` `   Background   X4-  10.` ` The Telecommunications Act of 1996(4@M yO%-ԍ The Telecommunications Act of 1996, Pub. L. No. 104104, 110 Stat. 56 (1996) ("1996 Act"). amended the Communications Act to provide new definitions of certain terms that are also used in CALEA. Section 102(8) of CALEA defines a "telecommunications carrier" to be "a person or entity engaged in the transmission or switching of wire or electronic communications as a common carrier for  X-hire."@)M yOY-ԍ 47 U.S.C.  1001(8).@   Section 3(10) of the Communications Act, as amended, defines a "common carrier"  X-as "any person engaged as a common carrier for hire."@*` M yO!-ԍ 47 U.S.C.  153(10).@ Courts have held that the definition of a common carrier in the Communications Act is not dispositive in determining who is" *0*%%ZZ"  X-acting as a common carrier.j+XM yOy-ԍ Federal Communications Commission v. Midwest Video Corp., 440 U.S. 689, 705 (1979); National  yOA-Association of Regulatory Utility Commissioners v. Federal Communications Commission, 525 F.2d 630, 640  yO -(D.C. Cir.), cert. denied, 425 U.S. 922 (1976) ("NARUC I"). j The courts have focused on the "quasipublic character implicit  X-in the common carrier concept,"I,M yO-ԍ NARUC I, 525 F.2d at 641. I by holding that a common carrier is one that holds itself out  X-to serve the public indiscriminately.:-xM yO-ԍ Id. at 642.: Absent a legal requirement to act as a common carrier, an entity is not a common carrier "if its practice is to make individualized decisions, in  X-particular cases, where and on what terms to deal.":.M yO] -ԍ Id. at 641.: Over the last twenty years, the Commission has made determinations of what is and what is not a common carrier for  Xv-purposes of the Communications Act./vM yO-ԍ See, e.g., Matter of Radio Location Service, Docket No. 16106, Report and Order, 5 FCC 2d 197, 202  yO-(1966). For judicial interpretations of the Commission's definition of common carrier, see NARUC I at 640;  yOO-525 F.2d 630, 640 (D.C. Cir.), cert. denied, 425 U.S. 922 (1976); National Association of Regulatory Utility  yO-Commissioners v. Federal Communications Commission, 533 F.2d 601 (D.C. Cir. 1976) ("NARUC II"); and  yO-Wold Communications, Inc. v. FCC, 735 F.2d 1465, 14745 (D.C. Cir. 1984).   X_-   XH- 11. ` ` Section 102(8) of CALEA defines a "telecommunications carrier" to include "a person or entity engaged in the transmission or switching of wire or electronic  X -communications as a common carrier for hire."@0 H M yO-ԍ 47 U.S.C.  1001(8).@ Under Section 102(8), telecommunications  X -carrier also includes "a person or entity engaged in providing commercial mobile service."F1 M yO-ԍ 47 U.S.C.  1001(8)(B)(i).F Section 102(8)(B)(i) references the definition of "commercial mobile service" set forth in Section 332(d) of the Communications Act. Under Section 332(d), to be classified as a provider of commercial mobile service, an entity must offer: (1) a mobile service; (2) that is  X -provided for profit; and (3) that makes interconnected service available to the public.2  hM yO-ԍ 47 U.S.C.  332(d)(1). "A person engaged in the provision of a service that is a commercial mobile service shall, insofar as such person is so engaged, be treated as a common carrier for purposes of this Act [Communications Act], except for such provisions of title II as the Commission may specify by regulation as  yO"-inapplicable to that service or person." Id. at  332(c)(1)(A). Interconnected service means service that is interconnected with the public switched" P20*%%ZZ"  X-network.B3M yOy-ԍ 47 U.S.C.  332(d)(2).B Private mobile service, on the other hand, is defined as "any mobile service . . . that is not a commercial mobile service or the functional equivalent of a commercial mobile  X-service."B4XM yO-ԍ 47 U.S.C.  332(d)(3).B A person engaged in private mobile service cannot be treated as a common carrier  X-for "any purpose" under the Communications Act.B5M yOT-ԍ 47 U.S.C.  332(c)(2).B Section 20.9 of our rules defines those mobile service providers that are common carriers and are regulated as commercial mobile  X-radio service providers.>6xM yO -ԍ 47 C.F.R.  20.9.>  X_- 12.` ` Section 102(8) of CALEA grants the Commission some discretion in  XH-interpreting the meaning of the phrase "telecommunications carrier."@7HM yO-ԍ 47 U.S.C.  1001(8).@ The definition of "telecommunications carrier" includes persons providing wire or electronic switching or transmission to the extent 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  X -[CALEA]."G8 M yO-ԍ 47 U.S.C.  1001(8)(B)(ii).G The legislative history of CALEA provides additional guidance in determining what entities should be classified as telecommunications carriers for purposes of CALEA:  ` XThe bill makes it clear that all telecommunications carriers will cooperate and assist in the interception of communicationsx for law enforcement. The definition of "telecommunications carrier" includes such service providers as local exchange carriers, interexchange carriers, competitive access providers (CAPs), cellular carriers, providers of personal communications services (PCS), satellitebased service providers, cable operators, and electric and other utilities that provide telecommunications services for hire to the  X-public, and any other wireline or wireless service for hire to the   xx- X-Xpublic.9(  yO#-ԍ See 140 Cong. Rec. H10779 (daily ed. October 7, 1994) (statement of Rep. Hyde). See also H.R. Rep.  yOK$-103827, 103d Cong., 2d Sess., pt. 1, at 20 (1994). x" 90*%%ZZ"Ԍ X-ԙ `   13.` ` Section 102(8) also permits the Commission to exclude from its requirements "any class or category of telecommunications carriers that the Commission exempts by rule  X-after consultation with the Attorney General."<:XM yOK-ԍ 47 U.S.C.  1001(8)(C)(ii). Pursuant to 28 C.F.R.  0.85(o), the Attorney General's implementation responsibilities under CALEA have been delegated to the Federal Bureau of Investigation ("FBI"). FBI Advanced Notice of Proposed Rulemaking, 61 Fed. Reg. 58,790 (1996).< In addition, Section 102(8) explicitly excludes from the definition of telecommunications carrier any persons or entities insofar as they provide exclusively information services. Information services specifically excluded from CALEA include information storage services, electronic publishing, and electronic  Xv-messaging services.; vM yO -ԍ 47 U.S.C.  1001(8)(C)(i). Under CALEA, "information services"  yO -X(A) X` ` means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications; and(#`  yO-X(B)X` ` includes (#`  yO-` ` (i) a service that permits a customer to retrieve stored information from, or file information for storage in, information storage facilities;(#  yOO-` ` (ii) electronic publishing; and  yO-` ` (iii) electronic messaging services; but  yO-(C)` ` does not include any capability for a telecommunications carrier's internal management, control, or operation of its telecommunications network.(#`  yO-Id. at  1001(6).  We note, however, that while CALEA excludes providers of information services from the requirement that they modify their networks in accordance with regulations promulgated by the Attorney General, CALEA does not exclude providers of information services from the duty to provide law enforcement personnel with interceptions in  X -response to a court order.^<X hM yO3-ԍ See 18 U.S.C.  2510(12) and 2516(2). The former statute defines "electronic communications" in a manner that includes information services, and the latter statute empowers law enforcement personnel to petition and receive authorization to conduct interceptions of electronic communications. ^  X - 14. ` ` Section 601 of the 1996 Act provides, however, that the 1996 Act will have no implied effect upon existing federal, state or local law when it states that "[t]his Act and the amendments made by this Act shall not be construed to modify, impair, or supersede Federal,  X -State, or local law unless expressly so provided in such Act or amendments."E= M yO"-ԍ 1996 Act,  601(c).E No specific reference to CALEA is made in the 1996 Act. As amended by the 1996 Act, the Communications Act defines "information services" as "the offering of a capability for"y =0*%%ZZi" generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a  X-telecommunications system or the management of a telecommunications service.">M yO4-ԍ 47 U.S.C.  153(20). See infra para. 20 for a discussion of the impact of the 1996 Act on CALEA's definition of information services. The new definition of "information services" in the Communications Act does not enumerate as many services as the definition contained in CALEA. The Communications Act's new definition specifically includes information storage services, electronic publishing, and electronic  X_-messaging services.C?_ M yO0 -ԍ 47 U.S.C.  1001(6)(B).C In addition, unlike the Communications Act, CALEA's definition of information services specifically excludes "any capability for a telecommunications carrier's  X1-internal management, control, or operation of its telecommunications network."C@1M yO-ԍ 47 U.S.C.  1001(6)(C).C The Communications Act also provides a different definition of "telecommunications carrier," namely "any provider of telecommunications services, except that such term does not include  X -aggregators of telecommunications services."@A @M yO-ԍ 47 U.S.C.  153(44).@ "Telecommunications service" is defined as "the offering of telecommunications for a fee directly to the public, or to such classes of users  X -as to be effectively available directly to the public, regardless of the facilities used."@B M yO?-ԍ 47 U.S.C.  153(46).@ "Telecommunications," in turn, is defined to mean "the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or  Xy-content of the information as sent and received."@Cy` M yO-ԍ 47 U.S.C.  153(43).@  XK- 2.` ` Discussion   X- 15.` ` Although the canons of statutory construction generally provide that a later  X-enacted provision will govern an earlier enacted provision,D M yO -ԍ Watt v. Alaska, 451 U.S. 259, 266 (1981) (citing 2A C. Sands, Sutherland on Statutes and  yOo!-Statutory Construction,  51.02 (4th ed. 1973)). Section 601(c)(1) of the 1996 Act specifically provides: "This Act and the amendments made by this Act shall not be construed to modify, impair or supersede Federal, State or local law unless expressly so provided in such Act or amendments." We therefore tentatively conclude that Section 601(c)(1) of the 1996 Act establishes that CALEA's definition of a telecommunications carrier was not" H D0*%%ZZ" modified by the 1996 Act. CALEA, enacted on October 25, 1994, was already federal law by  X-the time the 1996 Act was passed. Also, for the reasons discussed in paragraph 14, supra, we tentatively conclude that Section 601(c)(1) of the 1996 Act establishes that CALEA's definition of "information service" was not modified by the 1996 Act. We seek comment on  X-these tentative conclusions.  Xv-  16.` ` We also tentatively conclude that all entities previously identified herein as common carriers for purposes of the Communications Act are telecommunications carriers that are subject to CALEA. Commercial mobile service providers also fall within the CALEA's definition of telecommunications carriers because the Communications Act states that they are  X -to "be treated as common carriers for purposes of this [Communications] Act,"E M yO -ԍ See 47 U.S.C.  332(c)(1)(A). See also supra para. 11 for a discussion of commercial mobile service providers. and CALEA Section 102(8)(B)(i) specifically includes commercial mobile service providers as  X -telecommunications carriers for purposes of CALEA.FF M yO-ԍ 47 U.S.C.  1001(8)(B)(i).F In addition, cable operators and electric and other utilities may be subject to CALEA's requirements to the extent that they offer telecommunications services for hire to the public. In addition, we seek comment on a proposal, to include within the definition of telecommunications carrier for purposes of CALEA, any entity that holds itself out to serve the public indiscriminately in the provision  Xy-of any telecommunications service.GXyM yO-ԍ For a discussion on what is a telecommunications carrier, see Implementation of the Local Competition Provisions in the Telecommunications Act of 1996 and Interconnection Between Local Exchange Carriers and  yOj-Commercial Mobile Radio Service Providers, First Report and Order, 11 FCC Rcd 1 (1996), at  992.  Finally, we tentatively conclude that providers of pay telephones are not telecommunications carriers for purposes of CALEA. We seek comment on these tentative conclusions.  X- 17.` ` We conclude that Congress intended the obligations of CALEA to have broad applicability, subject only to the limitations in scope explicitly contained in the statute. We propose not to adopt a specific list of carriers subject to these obligations because we expect that the types of entities subject to CALEA may change over time. We do propose, however, including in the rules that may be adopted in this proceeding the following list as examples of the types of entities that are subject to CALEA's requirements to the extent that they offer telecommunications services for hire to the public:  Xe-` ` local exchange carriers(#`  XN-` ` interexchange carriers(#`  X7-` ` competitive access providers(#`  X - ` ` satellitebased service providers"  G0*%%ZZz"Ԍ X-` ` providers of commercial mobile radio service as set forth in Section 20.9 of  X-` ` our RulesHHM yOb-ԍ See 47 C.F.R.  20.9.H  X-` ` cable operators(#`  X-` ` electric and other utilitiesI XM yO-ԍ Under Section 103 of the 1996 Act, supra, the Commission may determine that telecommunications operations of public utility holding companies are exempt from certain requirements of the Public Utility Holding  yOT-Company Act of 1935 (PUHCA). See also 15 U.S.C.  79  (Section 103 of the 1996 Act amends PUHCA by adding a new Section 33, which defines "Exempt Telecommunications Company"). (#`  X-` ` any other providers of wireline or wireless telecommunications service for (#(#` ` hire to the public. We seek comment on this proposal and on whether the listing should include categories in addition to those discussed above. We recognize that new entrants have a wide variety of business plans that call for the leasing of all, or a portion, of their network facilities from other carriers. As a result, we seek comment on the extent to which resellers should be included in CALEA's definition of "telecommunications carrier."  X - 18.` ` Under Section 102(8)(B)(ii) of CALEA, if "any person or entity engaged in providing wire or electronic communication or switching service" is providing a replacement for a substantial portion of local exchange service, the Commission may exercise its discretion  X-and classify it as a telecommunications carrier subject to CALEA.J@M yO-ԍ See 140 Cong. Rec. H10781 (daily ed. October 7, 1994) (statement of Rep. Markey). We tentatively conclude that Congress gave the Commission this flexibility, so that in the future, the Commission may use Section 102(8)(B)(ii) of CALEA to include persons or entities that provide a replacement for local exchange service in a manner that does not fit neatly into the current definition of telecommunications carrier. At this time, without having a specific example to consider, we propose to decline to exercise the discretion granted in the statute to include within the definition of telecommunications carrier, and thus make subject to the obligations CALEA imposes on this class, specific persons or entities providing wire or electronic communication or switching service that is a replacement for a substantial portion of the local exchange  X-service.kKM yOB -ԍ See CALEA  102(8)(B)(ii), 47 U.S.C.  1001(8)(B)(ii).k We seek comment on this proposal, and ask commenters to identify any case(s) that they believe warrant Commission action under this provision. Comments should specify the rationale and benefits of the exercise of such discretion by the Commission.  Xe- 19.` ` Under Section 102(8)(C)(ii), the Commission may also exempt by rule, after consulting with the Attorney General, specific classes or categories of telecommunications"N` K0*%%ZZ" carriers. If the Commission does not exercise its discretion pursuant to section 102(8)(C)(ii), to exclude specific classes or categories of carriers from the obligations of CALEA, then all  X-specific classes or categories would be included unless the statute explicitly excludes them.kLM yOK-ԍ See CALEA  102(8)(C)(ii), 47 U.S.C.  1001(8)(C)(ii).k For example, CALEA explicitly states that the assistance capability obligations of Section  X-103eMXM yO-ԍ See infra para. 34 for a discussion of  103.e do not apply to information services or to interconnection services and facilities and, consequently, we would not consider the providers of such services to be telecommunications  Xv-carriers for purposes of CALEA.NvM yO -ԍ 47 U.S.C.  1002(b)(2). Interconnection services and facilities are defined as "equipment, facilities, or services that support the transport or switching of communications for private networks or for the sole purpose of  yO -interconnecting telecommunications carriers." Id. at  1002(b)(2)(B). Such services and facilities include "ATM [automated teller machine] networks, bankcard processing networks, automated check clearinghouse networks, stock exchange trading networks, point of sale systems, and bank wire transfer, stock transfer and funds transfer  yO-systems." H.R. Rep. No. 103827, 103d Cong., 2d Sess., pt. 1, at 23 (1994).  We request comment on whether the Commission should exercise its discretion and exclude classes or categories of carriers at this time. We also tentatively conclude that private mobile service providers are not subject to the requirements of CALEA because, pursuant to Section 332 of the Communications Act, persons engaged in private mobile service cannot be treated as a common carriers for any purpose under the  X -Communications Act.IO ` M yO-ԍ 47 U.S.C.  332(c)(1)(D)(2). I We seek comment on this tentative conclusion. Commenters that contend certain classes or categories of carriers should be excluded from the definition of telecommunications carrier should explain how excluding such entities is consistent with the intent of CALEA.  X-  20.` ` We tentatively conclude that providers of exclusively information services, such as electronic mail providers and online services providers, are excluded from CALEA's requirements and are therefore not required to modify or design their systems to comply with CALEA. We note the Judiciary Committee's intent "not to limit the definition of `information services' to such current services, but rather to anticipate the rapid development of advanced software and to include such software services in the definition of 'information  X-services.'"kP M yO -ԍ H.R. Rep. No. 103827, 103d Cong., 2d Sess., pt. 1, at 21 (1994). k Accordingly, we seek comment on the applicability of CALEA's requirements to information services provided by common carriers. We also note, however, that Congress anticipated that calling features such as call forwarding, call waiting, threeway calling, speed dialing, and the "call redirection portion of voice mail" would be subject to CALEA's" P0*%%ZZ"  X-requirements.2QM yOy-ԍ Id.2 Thus, we tentatively conclude that calling features associated with telephone service are classified as telecommunications services for the purposes of CALEA, and carriers offering these services are therefore required to make all necessary network modifications to comply with CALEA. We seek comment on these tentative conclusions.  X-  X-B.CARRIER SECURITY POLICIES AND PROCEDURES  X_-1.` ` Background  X1-21.` ` Section 105 of CALEA requires a telecommunications carrier to enable the interception of communications content or access to callidentifying information via its  X -switching premises.R XM yO -ԍ Switching premises include both central offices and mobile telephone switching offices. H.R. Rep. No. 103827, 103d Cong., 2d Sess., pt. 1, at 26 (1994). This interception, however, can be executed only with: (1) the presentation of a court order or other lawful authorization; and (2) the affirmative intervention  X -of a carrier officer or employee.=S M yO6-ԍ 47 U.S.C.  1004.= Therefore, CALEA prohibits law enforcement agencies  X -from remotely activating interceptions within a carrier's switching premises.jT @M yO-ԍ H.R. Rep. No. 103287, 103d Cong., 2d Sess., pt. 1, at 26 (1994).j Under CALEA, all interceptions require the intervention and cooperation of a designated and  X-authorized carrier officer or employee.2UM yO-ԍ Id.2 The officer or employee must act "in accordance  Xy-with regulations prescribed by the Commission."2Vy` M yO-ԍ Id.2  XK- 22. ` ` Section 229 of the Communications Act requires the Commission to prescribe rules to govern the policies telecommunications carriers adopt concerning the conduct of carrier personnel called upon to assist law enforcement officials in implementing electronic surveillance. Section 105 of CALEA requires a telecommunications carrier to ensure that its officers and employees follow those rules. Section 105 states: X` ` A telecommunications carrier shall ensure that any(# X` ` interception of communications or access to (# ` ` callidentifying information effected within its ` ` switching premises can be activated only in"| V0*%%ZZP"Ԍ` ` accordance with a court order or other lawful ` ` authorization and with the affirmative X` ` intervention of an individual officer or employee(# ` ` of the carrier acting in accordance with  X-` ` regulations prescribed by the Commission.=WM yO-ԍ 47 U.S.C.  1005.=  Xv-  23.` ` Section 229 of the Communications Act directs the Commission to prescribe rules to implement Section 105 of CALEA. These rules shall require carriers: (1) to establish policies and procedures to assure that carrier employees have appropriate authorization to  X1-activate electronic surveillance and to prevent unauthorized surveillance (i.e., carrier security  X -policies); (2) to maintain records of both authorized and unauthorized surveillance (i.e., recordkeeping requirements); and (3) to submit policies and procedures to the Commission for  X -review (i.e., Commission review).zX XM yO-ԍ 47 U.S.C.  229(b). See also CALEA  105, 47 U.S.C.  1004.z  X - 24. ` ` The Attorney General delegated her authority to meet CALEA's responsibilities  X -to the Director, Federal Bureau of Investigation ("FBI").Y  M yO@-ԍ See Advanced Notice of Proposed Rulemaking, 61 Fed. Reg. 68,790 (1996); see also 28 C.F.R. 0.85(o), which permits the Attorney General to delegate responsibilities to the FBI Director or his or her designee. The FBI's Telecommunications Industry Liaison Unit and Telecommunications Contracts and Audits Unit are the  yO-agents charged with implementing CALEA for the FBI Director and the Attorney General.xx- Pursuant to CALEA Sections 104  X-and 106, infra, the FBI has been meeting with federal, state and local law enforcement officials, telecommunications carriers, providers of telecommunications support services, and manufacturers of telecommunications equipment, to determine CALEA requirements and standards. The Commission consulted with the FBI, wireline carriers, wireless carriers, manufacturers and others, which shared information concerning existing carrier implementation of lawful electronic surveillance on behalf of law enforcement officials. The Commission also consulted with the FBI regarding the information content that carriers should include in their records of electronic surveillance, and the reporting requirements that this Commission should impose on telecommunications carriers. The information provided by the  X-FBI to the Commission is reflected in the proposals set forth below.bZM yOB -ԍ See, e.g., paras. 27, and 3133, infra.b  X- 2.` ` Proposals  X|-  Xe-` ` (a) Requirement 1 Systems Security and Integrity "N` Z0*%%ZZ"Ԍ X-  ` `  (1)Carrier Security Policypp    X- 25.` ` Section 229 directs the Commission to adopt rules to implement Section 105 of CALEA, and then to determine whether the policies and procedures established by a carrier with respect to the supervision and control of its officers and employees involved in electronic  X-surveillance comply with the Commission's rules.C[M yO-ԍ 47 U.S.C.  229(a)(c).C Under the policies and procedures established by carriers, carriers' employees are required to receive "appropriate  X_-authorization"B\_XM yOh -ԍ 47 U.S.C.  229(b)(1).B prior to assisting law enforcement officials in implementing electronic surveillance. Appropriate authorization could mean either: (1) the authority the carrier needs from a court or law enforcement officials to engage in interception activity; or (2) the authorization that a carrier's employee needs from the carrier to engage in interception activity. We tentatively conclude "appropriate authorization" in Section 229(b)(1) refers to the authorization that a carrier's employee needs from the carrier to engage in interception activity since this subsection refers to appropriate policies and procedures for supervision of the carrier's own employees. We also request comment generally on the rules the Commission should consider to implement Section 105, the meaning of appropriate authority, and the tentative conclusion.  Xb- 26. ` ` We tentatively conclude that CALEA Section 105 imposes a duty upon each telecommunications carrier to ensure that only lawful interceptions will occur on its premises and that unlawful interceptions occurring on its premises are a violation of that duty. We also tentatively conclude that this duty requires each telecommunications carrier to ensure that the personnel it designates to implement and have access to interceptions will only perform those interceptions that are authorized, and that those personnel will not reveal the existence, or the content, of these interceptions to anyone other than authorized law enforcement personnel, except as required by a court of competent jurisdiction or appropriate legislative or regulatory  X-body.<]M yOC-ԍ 18 U.S.C. 2516.< We request comment on these tentative conclusions.  X|- 27. ` ` We note that 18 U.S.C.  2511 and 2520 provide criminal penalties and civil remedies, respectively, against persons who are convicted of conducting illegal electronic  XN-interceptions.P^NxM yOw"-ԍ 18 U.S.C.  2511(1) and 2520(a).P A required element of proof for both criminal offenses and civil actions is"N^0*%%ZZ"  X-intent,_M yOy-ԍ U.S. v. Wuliger, 981 F.2d 1497, 1501, quoted in Williams v. Poulos, 11 F.3d 271, 284 (1st. Cir. 1993);  yOA-Forsyth v. Barr, 19 F.3d 1527, 1538 (5th. Cir. 1995). either to intercept communications illegally,H` M yO-ԍ 18 U.S.C.  2511(a) and (b).H or to use information with the  X-knowledge that it was obtained through the use of an illegal wiretap.HaM yOJ-ԍ 18 U.S.C.  2511(c) and (d).H We request comment  X-on the extent to which the Section 105 duty described aboveMb@M yO -ԍ See paragraph 25, supra.M extends vicarious criminal and civil liability to a carrier if the carrier's employees are convicted of intercepting communications illegally. We also request comment on whether a Commission rule that  X-requires carriers to report all illegal wiretapping and compromises of the confidentiality of the interception, to the Commission and/or the affected law enforcement agency or agencies, would modify or mitigate the carrier's liability under 18 U.S.C.  2511 and 2520. In this context, the term "wiretapping" refers to all forms of electronic surveillance, including traps,  X1-traces, pen registers, Title III interceptions, and FISA interceptions.c1M yO-ԍ See notes 113 and 114, infra, for definitions of Title III and FISA, respectively. For example, the FBI has suggested that all telecommunications carriers be required to report any violation of their security policies and procedures to the FCC and to report any "compromise of an interception concerning its existence to the FCC, and to the law enforcement agency, or agencies,  X -affected."9dX ` M yO-ԍ See Letter from Rozanne R. Worrell, Supervisory Special Agent, FBI, to Kent Nilsson, Deputy Chief of the Network Services Division, Common Carrier Bureau, FCC, dated December 17, 1996, a copy of which has been placed in the public record of this docketed proceeding.9  X -` `  (2)Legal Authority  X-   Xy- 28. ` ` Section 105 of CALEA defines appropriate authorization as a court order or  Xb-other lawful authorization.=eb M yO-ԍ 47 U.S.C.  1004.= Lawful authorization may be of two types: (1) a court order signed by a judge directing a telecommunications carrier to provide assistance in conducting specified electronic surveillance; or (2) a certification in writing by a designated senior law  X-enforcement official that no court order is necessary.GfM yO"-ԍ 18 U.S.C.  2511(2)(a)(ii).G The latter authorization generally is limited to emergency situations that, in the judgment of senior law enforcement officials, "f0*%%ZZ("  X-involve danger of death, serious physical injury, or serious criminal activity.gM yOy-ԍ See supra note 21 for a list of circumstances in which assistance in conducting electronic surveillance by a telecommunications carrier may be provided lawfully without a court order.  X- 29. ` ` We tentatively conclude that appropriate legal authorization for purposes of CALEA encompasses what is required by Section 2518 of Title 18 of the United States  X-Code.h(  M yOu-ԍ 18 U.S.C.  2518. To obtain a court order authorizing the interception of a wire, oral, or electronic communication, a law enforcement officer must submit a written application to a court of competent jurisdiction. The application must include information such as the identity of the officer making the application, a complete statement of facts supporting the application, a statement of whether other investigative procedures have been tried and failed or of why they appear reasonably unlikely to succeed or are too dangerous to attempt, and a statement of the period of time for which the interception is required. 18 U.S.C.  2518(1). The judge may  yO% -enter an ex parte order authorizing the interception upon a finding of probable cause. 18 U.S.C.  2518(3). The order must specify such details as the name of the person, if known, whose communications are to be intercepted, the nature and location of the communications facility at which authority to intercept is granted, a description of the communication to be intercepted and the offense to which it relates, the identity of the agency authorized to intercept the communications, and the period of time during which such interception is authorized. 18 U.S.C.  2518(4). No order authorizing interception of communications may remain in effect longer than 30 days, unless a separate application for extension is granted. 18 U.S.C.  2518(5).  The legislative history of CALEA contains no congressional finding that existing law is inadequate to protect citizens' privacy and security rights against improper surveillance. The FBI has stated that the interception of wire and oral communications requires law enforcement officials to observe requirements beyond those that are typical of ordinary search  XH-warrants.yi HM yO -ԍ Statement of Louis J. Freeh, Director, Federal Bureau of Investigation, before the Subcommittee on Technology and the Law of the Committee on the Judiciary, United States Senate, and the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary, United States House of Representatives, at 5556 (March 18, 1994).y For example, unlike most search warrants, applications from federal law enforcement agencies for interception authority require the authorization of a highlevel United States Department of Justice official before a United States Attorney can apply for an  X -order.@j M yO-ԍ 18 U.S.C.  2516(1).@ In addition, authorizations to federal law enforcement agencies to conduct electronic surveillance must issue from a district court judge, while ordinary search warrants may issue  X -from a federal magistrate.k M yO!-ԍ Compare 18 U.S.C.  2516(1) (electronic surveillance) with Fed. R. Crim. P. 41(a) (ordinary search warrants). Finally, authorizations for electronic surveillance are limited to  X -felony cases.Gl M yOO$-ԍ See 18 U.S.C.  2516.G Various states have enacted criminal electronic surveillance laws,m pM yO-ԍ See, e.g., D.C. Code Ann.  23541 et seq. (1981); 18 Pa. Const. Stat. Ann.  5701 et seq. (1983). but these" Xm0*%%ZZ " laws do not grant law enforcement officials greater rights than they have under federal law. To emphasize the importance of this fundamental requirement, we propose a rule requiring carriers to state in their internal policies and procedures that carrier personnel must receive a court order or, under certain exigent circumstances, an order from a specially designated investigative or law enforcement officer, before assisting law enforcement officials in  X-implementing electronic surveillance.@nXM yO-ԍ 18 U.S.C.  2518(7).@ In addition, we propose requiring carriers to incorporate into their policies and procedures the list of the exigent circumstances found at 18  X_-U.S.C.  2518(7).uo_M yO -ԍ See supra note 21 for a discussion of these circumstances.u We seek comment on these proposals.  X1-` `  (3)Internal Carrier Authority  X -  X - 30. ` ` Section 105 of CALEA, together with Section 229(b)(1) of the Communications Act, requires that carriers establish internal policies and procedures  X -governing the conduct of officers and employees who are engaged in surveillance activity.1px xM yO-ԍ 47 U.S.C.  229(b)(c), 1005; 140 Cong. Rec. H10781 (daily ed. October 7, 1994) (Statement by Rep. Markey: "Section 105 represents a significant expansion of privacy protection for citizens everywhere. It ensures that wiretapping technology does not become so easy as to obviate the need for telephone company participation, which serves as a check against an endrun of the judicial system. The Energy and Commerce Committee found this interest so compelling, that in title III of the bill we direct the Federal Communications Commission to adopt special rules to enforce this requirement, and to have companies submit their procedures for safeguarding those rules with the Commission so that this preventive measure is subject to public notice and not diluted."). 1 We propose requiring that carriers designate specific employees, officers, or both to assist law enforcement officials in implementing lawful interceptions. Except as provided below, we also propose that carriers include in their internal policies and procedures a statement that only designated employees or officers may participate in lawful interception activities. We are aware that for security reasons, carriers may prefer to restrict knowledge of lawful interception activity to specifically designated employees, so that nondesignated employees would effectuate legal surveillance by performing routine work assigned to them in accordance with their job descriptions, without realizing that the work involves lawful electronic surveillance. Accordingly, we propose that nondesignated employees be permitted to effectuate certain legal surveillance work, provided that they do such work unknowingly, as part of their routine work assignments. We seek comment as to whether such a procedure would be consistent with CALEA's requirements. Regarding recordkeeping, we recognize that nondesignated employees frequently make routine notations to company records to account for work performed. These notations, while necessary to provide full and complete" p0*%%ZZ" documentation, would not be sufficient for the purposes of CALEA. As a result, we propose that designated employees create separate records containing electronic surveillance information for the purpose of guaranteeing the effective supervision of electronic surveillance work performed by nondesignated employees who do not know that they are effectuating electronic surveillance. We seek comment on these proposals.  Xv- 31. ` ` We propose that telecommunications carriers' internal policies and procedures require each employee and officer who will knowingly engage in an interception activity to sign an affidavit containing the following information prior to each instance of participation in a communications interception: (1) the telephone number(s) or the circuit identification number(s) involved; (2) the name of each employee and officer who effected the interception and possessed information concerning its existence, and their respective positions within the telecommunications carrier; (3) the start date and time of the interception; (4) the stop date and time of the interception; (5) type of interception (e.g., pen register, trap and trace, Title  X -III,q  M yO7-ԍ "Title III" is a term of art used by law enforcement officials to denote lawful electronic interception of a  yO-communication's content (i.e., wiretapping). The term's historical origin is Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90351, 82 Stat. 212 (1968), codified in scattered sections of 18 U.S.C.  FISA);rr M yO-ԍ Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95511 (1978).r (6) a copy or description of the written authorization for the employee and officer to participate in interception activity; and (7) a statement that the employee or officer will not disclose information about the interception to any person not properly authorized by statute or court order. We seek comment on these proposals, and on whether additional items should be included in each affidavit. We also seek comment on whether we should limit the number of affidavits by requiring an affidavit to be prepared only by the employee or officer responsible for the interception activity.  X-` ` (b) Requirement 2 Recordkeeping  X- 32. ` ` Under Section 229(b)(2), the Commission must promulgate rules requiring telecommunications carriers to maintain secure and accurate records of any communications or callidentifying information interception, whether the interception was with or without lawful  X-authorization.Bs@M yO -ԍ 47 U.S.C.  229(b)(2).B In other words, carriers must keep records of all interceptions. We propose that these records include the following information: (1) the telephone number(s) and circuit identification number(s) involved; (2) the start date and time of the interception; (3) the stop date and time of the interception; (4) the identity of the law enforcement officer presenting the authorization; (5) the name of the judge or prosecuting attorney signing the authorization; (6) the type of interception (e.g., pen register, trap and trace, Title III, FISA); and (7) the" s0*%%ZZ\" name(s) of all telecommunications carrier personnel involved in performing, supervising, and internally authorizing, the interception, and the names of those who possessed knowledge of the interception. We further propose that such records be compiled, either contemporaneously with each interception, or within 48 hours of the start of each interception. We seek comment on the advantages and disadvantages of each of these proposals. We note that Title 18 of the United States Code subjects persons engaged in unauthorized interceptions to both criminal  Xv-prosecution and civil liability.PtvM yO-ԍ 18 U.S.C.  2511(4) and 2520(a).P We expect that the proposed record keeping rules, in conjunction with the significant liability prescribed in the statute for unauthorized interceptions, will give carrier personnel sufficient incentive to assist only authorized interceptions and will, therefore, protect users of telecommunications services against unauthorized invasions of privacy. We also seek comment on the length of time that each record should be retained within the custody of each telecommunications carrier. We note in this regard that 18 U.S.C.  2518(8)(a) provides, at a minimum, for a tenyear retention of the intercepted communication.  X - 33. ` ` We request comment on the nature of the information, if any, that telecommunications carriers should be required by our rules to make available to law enforcement officials upon request. Specifically, we request comment on whether our rules should require telecommunications carriers to create and maintain an official list of all personnel designated by the carriers to effectuate lawful interceptions, and whether carriers should be required to designate a senior officer or employee to serve as the point of contact for law enforcement officials. We request comment on the information that should be included on this list, and, in particular, whether it should contain each designated employee's name, personal identifying information (date and place of birth, social security number),  X-official title, and contact telephone and pager numbers. pp  X-` ` (c) Requirement 3 Commission Review  X-  X|- 34. ` ` Under Section 229(b)(3) of the Communications Act, telecommunications carriers must submit their security and recordkeeping policies to the Commission for  XN-review.BuNXM yOW-ԍ 47 U.S.C.  229(b)(3).B The Commission is then required to review those policies to ensure that they  X7-comply with our security and recordkeeping rules.?v7M yO!-ԍ 47 U.S.C.  229(c).? CALEA may apply initially to as many"7xv0*%%ZZ{"  X-as 3,500 telecommunications carriers,iw M yOy-ԍ Federal Communications Commission, CCB, Industry Analysis Division, Telecommunications Industry Revenue: TRS Fund Research Data, Tbl. 1 (Number of Carriers Reporting by Type of Carrier and Type of Revenue) (Dec. 1996) ("TRS Worksheet"). The 3,500 telecommunications carrier includes both wireline and wireless carriers.i although the 12 largest local exchange  X-carriers deliver more than 90% of the total dialing equipment minutes each year.kxM yOJ-ԍ Monitoring Report, CC Docket No. 87339, at Table 4.18 (May 1995).k It is conceivable that many of the small and rural telecommunications carriers subject to CALEA requirements may never be asked to conduct electronic surveillance. In considering this possibility, we question whether we should impose upon smaller carriers the requirements we impose upon larger carriers. We seek comment on ways to implement CALEA that will be consistent with Congressional intent that would also reduce CALEA compliance burdens on  X_-small carriers.y_@M yOP-ԍ See 140 Cong. Rec. H10779 (daily ed. October 7, 1994) (statement of Rep. Hyde).  X1- 35.` ` Previously, the Commission has found that $100,000,000 or more in annual operating revenues was the appropriate threshold for more detailed reporting requirements,  X -and below $100,000,000 in annual operating revenues for reduced regulatory scrutiny.hzX M yO-ԍ Automated Reporting Requirements for Certain Class A and Tier 1 Telephone Companies (Parts 31, 43,  yOL-67 and 69 of the FCC's Rules), Report and Order, 2 FCC Rcd 5770 (1987) (ARMIS Order), modified on recon.,  yO-Order on Reconsideration, 3 FCC Rcd 6375 (1988). h The  X -Commission subsequently applied an index to the revenue threshold to account for inflation.{@ M yO-ԍ Implementation of the Telecommunications Act of 1996: Reform of Filing Requirements and Carrier  yOU-Classifications, and Anchorage Telephone Utility, Petition for Withdrawal of Cost Allocation Manual, Order and  yO-Notice of Proposed Rulemaking, 11 FCC Rcd. 11716 (1996), at paras. 1012. The $100 million figure originally contained in 47 C.F.R.  32.11, to distinguish Class A and Class B companies, was modified to include an index (GDPCPI) that accounts for inflation. This index is periodically updated to account for inflation, and the  yOu-current threshold (1996) for a Class A company is $109 million. See Commission Adjusts its Annual Threshold  yO=-to Account for Inflation For 1996 in Accordance with Section 402 of the 1996 Telecommunications Act, Public  yO-Notice, Report No. CC9721, DA 97932 (May 2, 1997). If the record indicates that minimizing the burdens incurred by small incumbent local exchange carriers ("ILECs") in complying with CALEA is in the public interest, we propose defining "small telecommunications carriers" for ILECs in terms of the indexed revenue threshold provided in 47 C.F.R.  32.9000, so that telecommunications carriers may determine  Xy-the indexed revenue threshold annually.t|X( yM yO"#-ԍ 47 C.F.R  32.11(e) states: "The initial classification of a company shall be determined by its lowest annual operating revenues for the five immediately preceding years. Subsequent changes in classification shall be made when the annual"${0*%%$" operating revenues show a greater or lesser classification for five consecutive years. Companies becoming subject to the jurisdiction of the Commission and not having revenue data for the five immediately preceding years shall estimate the amount of their annual revenues and adopt the scheme of accounts appropriate for the amount of such estimated revenues." 47 C.F.R.  32.9000 states:  yO@-"Indexed revenue threshold for a given year means $100 million, adjusted for inflation, as measured by the Department of Commerce Gross Domestic Product Chaintype Price Index (GDPCPI), for the period from October 19, 1992 to the given year. The indexed revenue threshold for a given year shall be determined by multiplying $100 million by the ratio of the annual value of the GDPCPI for the given year to the estimated seasonally adjusted GDPCPI on October 19, 1992. The indexed revenue threshold shall be rounded to the nearest $1 million. The seasonally adjusted GDPCPI on October 19, 1992 is determined to be 100.69." t For carriers with annual revenues from"y |0*%%ZZ" telecommunications operations exceeding that threshold, we propose to require individual filings with this Commission that contain detailed statements of the policies, processes, and procedures that each carrier will use to comply with the requirements that are imposed by CALEA and by the rules that this Commission will adopt to implement CALEA. We further propose to permit any ILEC with annual operating revenues from telecommunications services of less than the threshold to elect either: (1) to file a statement describing its security policies, processes, and procedures; or (2) to certify that it observes procedures consistent with our prescribed systems security rules. Those ILECs that do not choose to certify compliance with CALEA's requirements must submit their policies and procedures to the Commission for individual review. We seek comment on whether such an approach would be consistent with the objectives of CALEA, and we invite alternative proposals that would effectively and efficiently achieve CALEA's objectives as well as comment on those proposals. Parties making such proposals should do so in their initial comments to permit other parties to respond in their reply comments.  X - 36. ` ` We tentatively conclude that the 47 C.F.R.  32.9000 indexed revenue threshold is a reasonable demarcation point for identifying those ILECs for which other reporting burdens should be reduced and have tentatively concluded that such a demarcation point should be used here. We seek comment on whether such a demarcation point should apply for other classifications of telecommunications common carriers such as those listed in  X4-paragraph 17, supra (e.g., cable operators, competitive access providers, CMRS, etc.). We seek comment on whether we should adopt the same threshold or a lower dollar threshold for  X-streamlined filing requirements (e.g., as outlined above for ILECs), for those other telecommunications carriers with CALEA obligations, as well as proposals and comments as to what those requirements should be and what threshold values this Commission should adopt. Our concern, in this regard, arises from the fact that law enforcement officials must be able to receive pen register, trap and trace, and interception services, upon request, from all telecommunications carriers subject to CALEA's requirements. We note that smaller and" |0*%%ZZ" newer telecommunications carriers may be among those telecommunications carriers least able to meet CALEA requirements, because smaller and newer telecommunications carriers may lack the resources of larger telecommunications carriers. We seek proposals that will enable us to ensure that CALEA's objectives are fully met while, at the same time, not imposing any unnecessary burdens upon those entities that are least able to meet them.  Xv- 37. ` ` Section 403 of the Communications Act<}vM yO-ԍ 47 U.S.C.  403.< empowers the Commission to require that carriers provide their policies and procedures, and records related to electronic surveillance policies and procedures if, in the Commission's discretion, such production is warranted to ensure compliance with Section 229(b)(3). We further note that Section 503(b)  X -of the Communications Act?~ XM yO# -ԍ 47 U.S.C.  503(b).? specifies penalties for violations by common carriers of  X -Commission Rules, and that Section 1.80 of the Commission's Rules= M yO-ԍ 47 C.F.R.  1.80.= specifies procedures in forfeiture proceedings. We request comment as to whether the procedures and penalties that  X -are specified in those provisions should be applied to all entities that are subject to CALEA.9X xM yO-ԍ Parties who conclude that the penalties specified at 47 U.S.C.  503(b) or the procedures specified at 47 C.F.R.  1.80 should not be used should recommend penalties and procedures that, in their view, would be more consistent with CALEA and its legislative history.9 We also request comment on the date by which carriers should be required to file their initial procedures and certifications with the Commission. We tentatively conclude that 90 days from the effective date of the rules adopted in this proceeding should be sufficient for carriers to complete their preparations and file with this Commission. We request comment on this tentative conclusion. In addition, we recognize that as technological advances occur and as companies merge or are divested, that there will be a continuing need to update systems security procedures. We request comment on the time that carriers should have preceding, and following, a merger or divestiture to make a new filing or filings.  X- 38. ` ` Although Section 229 of the Communications Act uses the term "common  X-carrier,"SM yO! -ԍ See 47 U.S.C.  229(b) (e).S after reviewing the statutory scheme as a whole, we tentatively conclude that Congress intended CALEA security rules to apply to all telecommunications carriers, as that  X-term is defined by Section 102(8) of CALEA.@( M yO#-ԍ 47 U.S.C.  1001(8).@ Section 229(b) is designed to implement the systems security and integrity requirements of Section 105 of CALEA. Section 105" 0*%%ZZo"  X-explicitly imposes security obligations upon telecommunications carriers.GM yOy-ԍ See 47 U.S.C.  1004.G We therefore tentatively conclude that Section 105 of CALEA and Section 229 of the Communications Act are to be read consistently, and that the rules promulgated pursuant to Section 229 shall apply to all telecommunications carriers as defined by CALEA and clarified in this rulemaking proceeding. We seek comment on this tentative conclusion.  Xv- C.JOINT BOARD  XH- 39. ` `  Section 229(e)(3) of the Communications Act requires the Commission to "convene a FederalState joint board to recommend appropriate changes to part 36 of the Commission's rules with respect to recovery of costs pursuant to charges, practices,  X -classifications, and regulations under the jurisdiction of the Commission."B XM yO -ԍ 47 U.S.C.  229(e)(3).B Part 36 of the Commission's rules addresses the separation of costs and revenues recorded in the accounts specified in Part 32 among the federal and state jurisdictions. The Commission issued a Notice of Proposed Rulemaking that addresses the impact of CALEA upon Part 36 and convened a joint board to address the issues that are identified in Section 229(e)(3) of the Communications Act. Interested parties are encouraged to review and respond to the issues  Xy-raised therein.yM yO-ԍ Jurisdictional Separations Reform and Referral to the FederalState Joint Board, Notice of Proposed  yO-Rulemaking, FCC 97354, CC Docket No. 80286 (adopted Oct. 2, 1997).  XK- D.ADOPTING TECHNICAL STANDARDS  X4-  X- 1.` ` Background  X-` ` (a) Section 103 of CALEA  X- 40. ` ` Section 103 of CALEA requires telecommunications carriers to ensure that their equipment, facilities, and services will meet four functional, or assistance capability,  X-requirements that enable law enforcement to conduct authorized electronic surveillance.=@M yO -ԍ 47 U.S.C.  1001.= First, a telecommunications carrier must be capable of expeditiously isolating, and enabling the government to intercept, all wire and electronic communications within that carrier's  XN-network to or from a specific subscriber of such carrier.INM yO$-ԍ 47 U.S.C.  1002(a)(1).I Second, the carrier must be"N` 0*%%ZZ" capable of rapidly isolating, and enabling the government to access, callidentifying  X-information that is reasonably available to the carrier.M yOb-ԍ 47 U.S.C.  1002(a)(2). See supra note 30 for a description of callidentifying information. With respect to information acquired  X-solely through pen registers or trap and trace devices,XM yO-ԍ See supra note 2 for a description of pen registers and trap and trace devices. the callidentifying information cannot include any information that may disclose the physical location of the subscriber,  X-except to the extent that the location may be determined by the telephone number alone.FM yO= -ԍ 47 U.S.C.  1002(a)(2)(B).F Third, a carrier must be capable of delivering intercepted communications and callidentifying information to a location specified by the government, other than the premises of the  X_-carrier.C_xM yO -ԍ 47 U.S.C.  1002(a)(3).C Fourth, a carrier must be capable of conducting interceptions and providing access  XH-to callidentifying information unobtrusively.CHM yO-ԍ 47 U.S.C.  1002(a)(4).C Carriers must protect the privacy and security of communications and callidentifying information not authorized to be intercepted, as well as information concerning the government's interception of the content of communications  X -and access to callidentifying information.3 M yOL-ԍ Id. 3  X -` ` (b) Section 107 of CALEA  X - 41. ` ` Section 107 of CALEA contains a safe harbor provision, stating that a carrier, a manufacturer of telecommunications transmission or switching equipment, or a provider of telecommunications support services will be deemed in compliance with CALEA's capability  Xb-requirements if it complies with publicly available technical requirements. b( M yO;-ԍ 47 U.S.C.  1006(a)(2). As part of their effort to comply with CALEA's capability and capacity requirements, telecommunications carriers are to consult with manufacturers of their transmission and switching  yO-equipment and their providers of telecommunications support services. Id. at  1005(a). Such manufacturers  yO-and providers are to cooperate with the telecommunications carriers in that effort. Id. at  1005(b).  An industry  XK-association or a standardssetting organization will set these standards.CKM yO !-ԍ 47 U.S.C.  1006(a)(2).C The Attorney General must consult with the industry and standardssetting organizations, with representatives of users of telecommunications equipment, facilities, and services, and with State utility commissions, "to ensure the efficient and industrywide implementation of the"0*%%ZZF"  X-assistance capability requirements."CM yOy-ԍ 47 U.S.C.  1006(a)(1).C The absence of industry standards, however, does not  X-relieve a carrier of its assistance capability obligations.FXM yO-ԍ 47 U.S.C.  1006(a)(3)(B).F  X- 42. ` ` Under Section 107 of CALEA, if technical requirements or standards are not issued, or if any person believes any standards issued are deficient, that party may petition the  X-Commission to establish such requirements or standards.@M yO& -ԍ 47 U.S.C.  1006(b).@ The Commission may, therefore, establish technical standards or requirements in only two situations: (1) if industry or standardsetting organizations fail to issue such requirements; or (2) if a government agency  XH-or any other person believes that any standards issued are deficient.2HxM yOq-ԍ Id.2 The Commission may commence a rulemaking proceeding upon the petition of a government agency or other  X -person.2 M yO-ԍ Id.2 Technical standards or requirements established by the Commission must:  X -` `   meet the assistance capability requirements of Section 103 of CALEA  X - (#(# (#(#` `  by cost effective methods;h(#  X -` `   protect the privacy and security of communications not authorized to be intercepted;(#  X-` `   minimize the cost of such compliance on residential ratepayers;(#  Xy-` `  serve the policy of the United States of encouraging the provision of new technologies and services to the public; and(#  XK-` `  provide a reasonable time and conditions for compliance with and the transition to any new standard, including defining the obligations of telecommunications carriers under Section 103 of CALEA during any  X-transition period.2M yOO-ԍ Id.2(#  X-` ` (c) Section 229 of the Communications Act  X- 43. ` ` Section 301(a) of CALEA, 47 U.S.C.  229(a), requires the Commission to "prescribe rules as are necessary to implement the requirements of the Communications Assistance for Law Enforcement Act." Section 229, therefore, grants the Commission authority to establish technical standards or requirements to implement CALEA. In addition,"e( 0*%%ZZ1" Section 107(b) of CALEA, 47 U.S.C.  1006(b), requires the Commission to act on a petition from a manufacturer, carrier, or government agency or any other person that believes it has been aggrieved by the industry standardssetting process.  X- 2.` ` Proposals   Xv- 44.` ` A subcommittee of the Telecommunications Industry Association (TIA) has, since early 1995, been working to develop a technical standard for the assistance capability envisioned by CALEA. This effort has included participation by industry and law  X1-enforcement. Earlier this year, a proposed standard was considered by TIA for approval as a national standard. The balloting procedure of this organization resulted in many detailed  X -comments. As a result, the proposed standard was revised,w M yO| -ԍ TIA/EIA SP 3580A, Lawfully Authorized Electronic Surveillance, July 28, 1997.w and submitted for parallel balloting by TIA and the American National Standards Institute (ANSI). The comment period associated with that balloting process expires on October 28, 1997. In the meantime, on July 16, 1997, the Cellular Telecommunications Industry Association (CTIA) filed a petition with the Commission to "promulgate by rule, the industry consensus document, attached hereto as  X-Exhibit 1,wXM yO-ԍ TIA/EIA SP 3580, Lawfully Authorized Electronic Surveillance, July 15, 1997.w as the technical standard for the assistance capability requirements of Section 103  Xy-of CALEA, 47 U.S.C.  1004"yM yO-ԍ In the Matter of Implementation of Section 103 of the Communications Assistance for Law Enforcement Act, Petition for Rulemaking, CTIA Petition (Jul. 16, 1997), at 2. (footnotes added). In addition, CTIA recommends that the Commission allow a period of two years from the date the Commission establishes the technical standards for implementation, which would postpone the October 25, 1998  X4-implementation deadline set forth in CALEA.x4@M yO%-ԍ See paragraph 49, infra, for a discussion on the compliance date. x On August 11, 1997, the Center for Democracy and Technology and the Electronic Frontier Foundation filed comments in  X-response to CTIA's Petition.iXM yO-ԍ In the Matter of Implementation of the Communications Assistance for Law Enforcement Act, Comments on Petition for Rulemaking of the Center for Democracy and Technology and the Electronic Frontier Foundation (response to July 16, 1997 Petition of the Cellular Telecommunications Industry Association) (August 11, 1997).i Our intention in this proceeding is to focus on obligations assigned specifically to the Commission by CALEA, and we will address CTIA's Petition, including CTIA's request for an extension, separately. Based on the ongoing nature of the standardsetting process, we conclude that it would be inappropriate at this time for us to address technical capability standards issues. Nothing in this Notice should be construed as evidence of any predisposition on the part of the Commission regarding capability standards, and we encourage the industry and law enforcement community to continue their efforts to"| 0*%%ZZ2" develop the necessary requirements, protocols and standards.  X-  X- E.REQUESTS UNDER THE "REASONABLY ACHIEVABLE" STANDARD  X- 1.` ` Background   Xv- 45. ` ` Under Section 109 of CALEA, telecommunications carriers or any other interested person may petition the Commission to determine whether requiring equipment, facilities, or services deployed after January 1, 1995 to comply with CALEA's Section 103  X1-capability requirements is "reasonably achievable."1M yO -ԍ 47 U.S.C.  1008(b)(1); see para. 40, supra, for a list of Section 103 requirements. Equipment, facilities, and services deployed on or before January 1, 1995 need not comply with the capability requirements of Section 103. "The Attorney General may, subject to the availability of appropriations, agree to pay telecommunications carriers for all reasonable costs directly associated with the modifications performed by carriers in connection with equipment, facilities, and services installed or deployed on or before January 1, 1995, to establish the  yO-capabilities necessary to comply with Section 103." Id. at  1008(a). If the Attorney General does not agree to pay all reasonable costs directly related to such modifications, the "equipment, facility, or service [deployed on or before January 1, 1995] shall be considered to be in compliance with the assistance capability requirements of Section 103 until the equipment, facility, or service is replaced or significantly upgraded or otherwise undergoes  yO-major modification." Id. at  1008(d).   The Attorney General must be notified of the petition, and the Commission must make a determination under the reasonably  X -achievable standard within one year after the date such a petition is filed.D ( M yO-ԍ 47 U.S.C.  1008(b)(1). D When considering any such petition under the reasonably achievable standard, "the Commission shall determine whether compliance would impose significant difficulty or expense on the carrier or  X -on the users of the carrier's systems."2 M yO'-ԍ Id.2 Factors to be considered by the Commission in determining whether compliance with the assistance capability requirements of Section 103 is reasonably achievable include the following:  Xb-  ` ` The effect [of compliance] on public safety and national security;(#`  XK-  ` ` The effect [of compliance] on rates for basic residential telephone service;(#`  X4-  ` ` The need to protect the privacy and security of communications not authorized  X-to be intercepted;hh,(#`  X-  ` ` The need to achieve the capability assistance requirements of Section 103 by costeffective methods;(#`  X-  ` ` The effect [of compliance] on the nature and cost of the equipment, facility, or service at issue;(#`  X-  ` ` The effect [of compliance] on the operation of the equipment, facility, or"H 0*%%ZZ4" service at issue;(#`  X-  ` ` The policy of the United States to encourage the provision of new technologies and services to the public;(#`  X-  ` ` The financial resources of the telecommunications carrier;(#`  X-  ` ` The effect [of compliance] on competition in the provision of telecommunications services;(#`  Xv-  ` ` The extent to which the design and development of the equipment, facility, or service was initiated before January 1, 1995; (#`  XH-  ` ` Such other factors as the Commission determines are appropriate.2HM yO -ԍ Id.2(#`  X - 46. ` ` If the Commission determines that compliance with the assistance capability requirements of Section 103 is not reasonably achievable, the affected carrier may petition the Attorney General to pay for the additional, reasonable costs necessary to make compliance  X -reasonably achievable.F XM yO-ԍ 47 U.S.C.  1008(b)(2)(A).F The Attorney General may agree to compensate the affected carrier for the "additional reasonable costs" of complying with the assistance capability requirements  X -of Section 103.2 M yO@-ԍ Id.2 If the Attorney General does not agree to pay such additional reasonable costs, the affected carrier would be deemed to be in compliance with CALEA's capability  Xy-requirements.FyxM yO-ԍ 47 U.S.C.  1008(b)(2)(B).F  XK- 47. ` ` Section 104 requires that telecommunications carriers comply with capacity requirements established by the Attorney General, after the Attorney General has consulted with State and local law enforcement agencies, telecommunications carriers, providers of telecommunications support services, and manufacturers of telecommunications equipment. Capacity refers to the ability of carriers' equipment, facilities, and services to accommodate  X-communications interceptions, pen registers, and trap and trace devices simultaneously.JM yO-ԍ See 47 U.S.C.  1003(b).J The capacity requirements are stated in terms of the actual number of communications interceptions, pen registers, and trap and trace devices carriers must accommodate, as well as  X-in terms of the maximum capacity carriers must be able to accommodate simultaneously.XM yO"-ԍ Id. at  1003(a)(1). The Federal Bureau of Investigation proposed "percentage of engineered capacity" as the capacity criterion for telecommunications carriers. The percentage of engineered capacity means the maximum number of simultaneous interceptions and call identifications that a network must be capable of"l$0*%%$" providing to law enforcement officials or entities, and is expressed as a percentage of total access lines. For example, if the Attorney General determines that the percentage of engineered capacity is .05, or five onehundredths of one percent, a telecommunications carrier with 100,000 access lines must be able to provide up to 50 (100,000 multiplied by .0005) simultaneous interceptions and call identifications in order to be in compliance  yO-with Section 104 of CALEA. See Implementation of the Communications Assistance for Law Enforcement Act, 60 Fed. Reg. 53,643 (1995).  " @0*%%ZZQ" Telecommunications carriers have to comply within three years from the publication date of  X-the Attorney General's notice of capacity requirements.E@M yO-ԍ 47 U.S.C.  1003(b)(1). E The Attorney General may reimburse carriers for reasonable costs directly associated with modifications to their networks  X-that are necessary to comply with the capacity requirements.DM yO< -ԍ Id. at  1003(e). D If the Attorney General does not reimburse a carrier for its reasonable costs, a carrier would be deemed by statute to be in compliance with the capacity requirements, whether or not the carrier is in actual  Xv-compliance.2v` M yO-ԍ Id.2 The FBI, operating under delegated authority from the Attorney General, initiated a rulemaking proceeding to determine initial and maximum capacity requirements  XH-pursuant to Section 104 of CALEA, but has not yet published rules.H M yO-ԍ Second Notice of Capacity, Notice of Proposed Rulemaking, 62 FR 1902 (1997).  X - 2.` ` Proposals  X -  X - 48. ` ` We request comment on the specific factors contained in Section 109(b)(1), (a) through (j), and the extent to which the Commission should consider specific factors when determining if compliance with CALEA's assistance capability requirements is reasonably achievable. We note that Section 109(b)(1)(k) allows the Commission to consider "[s]uch  X-other factors as the Commission determines are appropriate."F M yO-ԍ 47 U.S.C.  1008(b)(1)(k).F We seek comment on what additional factors the Commission should consider in determining whether compliance with CALEA's assistance capability requirements is reasonably achievable, and why. We ask commenters to state how such additional factors would be consistent with the intent of CALEA, and how those factors should be balanced against the explicit criteria contained in Section 109(b)(1).   X- F.EXTENSION OF COMPLIANCE DATE  X- 1. ` ` Background "!0*%%ZZ"Ԍ X-ԙ 49. ` ` Under Section 107(c) of CALEA,@M yOy-ԍ 47 U.S.C.  1006(c).@ a telecommunications carrier proposing to install or deploy, or having installed or deployed, any equipment, facility, or service prior to October 25, 1998, may petition the Commission for an extension of time in order to comply  X-with the assistance capability requirements of Section 103.=XM yO-ԍ 47 U.S.C.  1002.= The last date by which an  X-extension may be sought, therefore, will be October 24, 1998.5XM yO= -ԍ Section 111 of CALEA states that Section 103 "shall take effect on the date that is 4 years after the date of enactment of [CALEA]." 47 U.S.C.  1001 note 1. President Clinton signed CALEA on October 25, 1994. Thus, Section 103 takes effect on October 25, 1998. 5 The Commission may grant an extension of time until October 24, 2000 if, after consultation with the Attorney General, "the Commission determines that compliance with the assistance capability requirements under Section 103 is not reasonably achievable through application of technology available within  XH-the compliance period." HM yO-ԍ 47 U.S.C.  1008(c)(2) and (c)(3). Under Section 107(c), the Commission may grant an extension for a  yO-period of time that it deems necessary for the carrier to comply with the assistance capability requirements. Id. at  1008(c)(3)(A). The extension may be no longer, however, than "[t]he date that is 2 years after the date on  yOY-which the extension is granted." Id. at  1008(c)(3)(B).  Any extension of time granted by the Commission would apply only to "that part of the carrier's business on which the new equipment, facility, or service is  X -used."C M yO-ԍ 47 U.S.C.  1008(c)(4).C  X - 2.` ` Proposals   X -X` hp x (#%'0*,.8135@8:-ԍ 47 C.F.R.  76.901(e). The Commission developed this definition based on its determination that a small  yO-cable system operator is one with annual revenues of $100 million or less. Implementation of Sections of the  yO-1992 Cable Act: Rate Regulation, Sixth Report and Order and Eleventh Order on Reconsideration, 10 FCC Rcd 7393.  Based on our most recent information, we estimate that there were 1,439 cable operators that qualified as small  X-cable system operators at the end of 1995.(  yO-ԍ Paul Kagan Associates, Inc., Cable TV Investor, Feb. 29, 1996 (based on figures for December 30, 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, we estimate that there are fewer than 1,439 small entity cable system operators that may be affected by the decisions and rules adopted in this Order.  X-e 71. ` ` The Communications Act also contains a definition of a small cable system"+ 0*%%ZZQ"  X-operator, 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  X-any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000."B yOK-ԍ 47 U.S.C.  543(m)(2).B The Commission has determined that there are 61,700,000 subscribers in the United States. Therefore, we found that an operator serving fewer than 617,000 subscribers shall be deemed  X-a small operator, if its annual revenues, when combined with the total annual revenues of all  Xv-of its affiliates, do not exceed $250 million in the aggregate.CvX yO -ԍ 47 C.F.R.  76.1403(b).C Based on available data, we  X_-find that the number of cable operators serving 617,000 subscribers or less totals 1,450._ yO -ԍ Paul Kagan Associates, Inc., Cable TV Investor, Feb. 29, 1996 (based on figures for Dec. 30, 1995). We do not request nor do we collect information concerning whether cable system operators  X1-are affiliated with entities whose gross annual revenues exceed $250,000,000,TX1x yOZ-ԍ We do receive such information on a casebycase basis only if a cable operator appeals a local franchise authority's finding that the operator does not qualify as a small cable operator pursuant to  76.1403(b) of the  yO-Commission's Rules. See 47 C.F.R.  76.1403(d).T and thus are unable at this time to estimate with greater precision the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act. We further note that recent industry estimates project that there will be a total of 65,000,000 subscribers, and we have based our fee revenue estimates on that figure.  X -e 72. ` ` Other Pay Services. Other pay services are also classified under SIC 4841, which include cable operators, closed circuit television services, direct broadcast satellite services (DBS), multipoint distribution systems (MDS), satellite master antenna systems  Xb-(SMATV), and subscription television services.  XK-  X4- IV.Description of Projected Reporting, Recordkeeping and Other Compliance  X-Requirements:  X-e 73. ` ` The proposed rules require telecommunications carriers to establish policies and procedures governing the conduct of officers and employees who are engaged in surveillance activity. The proposed rules require telecommunications carriers to maintain records of all interceptions of communications and call identification information. Further, the proposed rules require telecommunications carriers classified as Class A companies pursuant to 47 U.S.C.  32.11 to file individually with the Commission a statement of its processes and procedures used to comply with the systems security rules promulgated by the Commission. Telecommunications carriers classified as Class B companies pursuant to 47 U.S.C.  32.11 may elect to either file a statement describing their security processes and procedures or to"7,0*%%ZZ" certify that they observe procedures consistent with the security rules promulgated by the  X-Commission. We note in paragraph 43, supra, that the FBI is developing electronic surveillance capacity requirements through the rulemaking process that all telecommunications carriers will have to meet in order to be in compliance with CALEA's requirements. Until these requirements become Federal Rules, it is not possible to predict with certainty whether the costs of compliance will be proportionate between small and large telecommunications carriers.  XH-e 74. ` ` We tentatively conclude that a substantial number of telecommunications  X1-carriers, who have been subjected to demands from law enforcement personnel to provide lawful interceptions and callidentifying information for a period time preceding CALEA, already have in place practices for proper employee conduct and recordkeeping. We seek comment on this tentative conclusion. As a practical matter, telecommunications carriers need these practices to protect themselves from suit by persons who claim they were the victims of  X -illegal surveillance.  yO7-ԍ 18 U.S.C.  2520 provides for the recovery of civil damages by persons who endured illegal electronic surveillance. By providing general guidance regarding the conduct of carrier personnel and the content of records in this NPRM, the Commission permits telecommunications carriers to use their existing practices to the maximum extent possible. Thus, we tentatively conclude that the additional cost to most telecommunications carriers for conforming to the Commission regulations contained in this NPRM, should be minimal. We seek comment on this tentative conclusion.  X- V.Significant Alternatives to Proposed Rules Which Minimize Significant Economic Impact on Small Entities and Accomplish Stated Objectives:  X-  X-e 75. ` ` As we noted in Part I of this IRFA, supra, the need for the proposed regulations is mandated by Federal legislation. The legislation is specific on the content of employee conduct and recordkeeping regulations for telecommunications carriers, which removes from Commission discretion the consideration of alternative employee conduct and recordkeeping regulations for smaller telecommunications carriers. The legislation, however,  XN-provides for Commission discretion to formulate compliance reporting requirements for telecommunications carriers that favor smaller telecommunications carriers, and the Commission exercised that discretion by proposing rules that allow smaller carriers the option to file a certification of compliance with the Commission instead of a statement of the policies, processes and procedures they use to comply with the CALEA regulations.  X - "!- 0*%%ZZ "Ԍ X-VI.Federal Rules that May Overlap, Duplicate, or Conflict with the Proposed Rules.  X-e 76.` ` As we noted in Part I of this IRFA, supra, the need for the proposed regulations is mandated by Federal legislation. As stated in paragraphs 1 and 9 of this  X-NPRM, supra, the purpose of CALEA was to empower and require the Federal Communications Commission and the Department of Justice to craft regulations pursuant to specific statutory instructions. Because there were no other Federal Rules in existence before CALEA was enacted, there are no duplicate Federal Rules. In addition, there are no overlapping, duplicating, or conflicting Federal Rules to the Federal Rules proposed in this proceeding. e  X - E. Notice and Comment Provisions  X -e 77. ` ` Pursuant to applicable procedures set forth in Sections 1.415 and 1.419 of the Commission's rules, 47 C.F.R. Sections 1.415 and 1.419, interested parties may file comments on or before December 12, 1997, and reply comments are due on or before January 12, 199 q#N 8 q#N  q#N7 . To file formally in this proceeding, you must file and original and six copies of all comments, reply comments, and supporting comments. If you want each Commissioner to receive a personal copy of your comments, you must file an original plus twelve copies. You should send comments and reply comments to the Office of the Secretary, Federal Communications Commission, Washington, D.C. 20554. Comments and reply comments will be available for public inspection during regular business hours in the FCC Reference Center (Room 239) of the Federal Communications Commission, 1919 M Street, N.W., Washington, D.C. 20554. e  X-e 78. ` ` Written comments by the public on the proposed information collections are due on or before fortyfive (45) days after publication in the Federal Register. Written comments must be submitted by OMB on the proposed information collections on or before sixty (60) days after publication in the Federal Register. In addition to filing comments with the Secretary, a copy of any comments on the information collections contained herein should be submitted to Judy Boley, Federal Communications Commission, Room 234, 1919 M Street, N.W., Washington, D.C. 20554, or via the Internet to jboley@fcc.gov and to Timothy Fain, OMB Desk Officer, 10236 NEOB, 725 17th Street, N.W., Washington, D.C. 20503 or via the Internet to faint@al.eop.gov.  X-l à  q#N   X#-1 q#N  "h$.0*%%ZZ(#"Ԍ X-VII. ORDERING CLAUSES  X-e 79. ` ` Accordingly, pursuant to Sections 1, 4, 201, 202, 204, 205, 218, 229, 301, 303,  X-312, 332, 403, 501 and 503 of the Communications Act of 1934, as amended, 47 U.S.C. Sections 151, 154, 201, 202, 204, 205, 218, 229, 301, 303, 312, 332, 403, 501 and 503, IT IS ORDERED that this NOTICE OF PROPOSED RULEMAKING is hereby adopted.  X_- FEDERAL COMMUNICATIONS COMMISSIONxx- X(#(#e` `  hh, e` `  hh, William F. Caton e` `  hh, Acting Secretary  X - e` `  hh,  Xh$-"h$/0*%%ZZ(#"Ԍ X-ԙy  APPENDIX A Proposed Final Rules l AMENDMENTS TO THE CODE OF FEDERAL REGULATIONS  X-zPART 64 MISCELLANEOUS RULES RELATING TO COMMON CARRIERS ă Part 64 of Title 47 of the Code of Federal Regulations (C.F.R) is amended as follows:  X1-1.eThe authority citation for Part 64 is amended to read as follows:  X - eAUTHORITY: 47 U.S.C.  151, 154, 201, 202, 205, 218220, and 332 unless otherwise noted. Interpret or apply  201, 218, 225, 226, 227, 229, 332, 48 Stat. 1070, as amended, 47 U.S.C.  201204, 218, 225, 226, 227, 229, 332, 501 and 503 unless otherwise noted.  X -2.eThe table of contents for Part 64 is amended to add Subpart Q to read as follows:  Xy-R Subpart Q Telecommunications Carrier Interceptions pursuant to the Communications  Xb-Assistance to Law Enforcement Act (CALEA)  X4-  64.1700` ` Purpose.  X- 64.1701` ` Scope.  X- 64.1702` ` Definitions.  X- 64.1703` ` Interception Requirements and Restrictions.  X- 64.1704` ` Carrier Records.  X- 64.1705` ` Compliance Statements.  X- ePart 64 is proposed to be amended to add Subpart Q to read as follows:  Xe- Subpart Q Telecommunications Carrier Interceptions pursuant to the Communications  XN-Assistance for Law Enforcement Act (CALEA) pp  X7-  X -eSections 64.1700 through 64.1704 are added to read as follows: xx- X  X- 64.1700` ` Purpose. ePursuant to the Communications Assistance for Law Enforcement Act, Pub. L. No. 103414, 108 Stat. 4279 (1994) (codified as amended in sections of 18 U.S.C. and 47 U.S.C.), this subpart contains implementation and compliance rules to govern telecommunications carriers subject to CALEA. These rules are in addition to rules promulgated by the Department of Justice pursuant to CALEA requirements."h$00*%%ZZ(#"Ԍ X-ԙ 64.1701` ` Scope. eThe definitions included in this subpart shall be used solely for the purpose of implementing CALEA's requirements.  X- 64.1702` ` Definitions.  X_-e(a)Telecommunications Carrier. The term "telecommunications carrier" means  XH-e(1)` ` a person or entity engaged in the transmission or switching of wire or  X(#(#eelectronic communications as a common carrier for hire; and  X -e(2)` ` includes  X -e` ` (A) a person or entity engaged in providing commercial mobile service (#(# X -e` ` (as defined in Section 332(d) of the Communications Act of 1934  X(#(#e` ` (47 U.S.C.  332(d)); or  X -e` ` (B) a person or entity engaged in providing wire or electronic  X(#(# X -e` ` communication switching or transmission service to the extent that  X(#(# X-the Commission finds that such service is a replacement for a xx- X(#(# Xy-substantial portion of the local telephone exchange service and that it  X(#(# Xb-is in the public interest to deem such a person or entity to be a xx- X(#(#telecommunications carrier for purposes of this title; but(#`  X4-e(3)` ` does not include persons or entities insofar as they are engaged in providing (#(#einformation services. e  X-e(b)Information Services. The term "information services"  X-e(1) ` ` means the offering of a capability for generating, acquiring, e` ` storing, transforming, processing, retrieving, utilizing, or making e` ` available information via telecommunications; and  X-e(2) ` ` includes  X|-e` ` (A) a service that permits a customer to retrieve stored  Xe-e` `  information from, or file information for storage in, information (#(#e` `  storage facilities;(#  X7-e` ` (B) electronic publishing; and  X -e` ` (C) electronic messaging services; but  X -e(3)` ` does not include any capability for a telecommunications  X-e` ` carrier's internal management, control, or operation of its xx- X(#(#ewX` ` telecommunications network.(#`  X - e  X!-e(c)Appropriate Legal Authorization. The term "appropriate legal authorization"  X(#(#emeans:(#  X#- e(1)` ` a court order signed by a judge of competent jurisdiction authorizing or (#(# Xh$-eapproving interception of wire or electronic communications; or (2) a xx- X(#(#"h$10*%%ZZ(#"  X-ewcertification in writing by a person specified in 18 U.S.C. 2518(7); or (3)  X(#(# X-a certification in writing by the Attorney General of the United States that  X(#(# X-no warrant or court order is required by law, that all statutory requirements  X(#(#have been met, and that the specified assistance is required.(#  X-e(d)Appropriate Carrier Authorization. The term "appropriate carrier authorization" (#(# Xv-eXmeans policies adopted by telecommunications carriers to identify carrier  X(#(#employees authorized to assist law enforcement in conducting communications authorizations.(#  X -e(e)Third Party. "Third party" means a person other than those authorized to receive a (#(#eXcommunication pursuant to 47 U.S.C. 605 of the Communications Act. (#  X - 64.1703` ` Interception requirements and restrictions eAn employee or officer of a telecommunications carrier shall assist in intercepting and disclosing to a third party a wire, oral, or electronic communication or shall provide access to callidentifying information only upon receiving a court order or other lawful authorization.  XK- 64.1704 ` ` Carrier records  X-e!^(a)The officers of any telecommunications carrier shall ensure that the carrier  X(#(# X-eXmaintains records of any assistance provided for the interception and disclosure to (#(#third parties of any wire, oral, or electronic communication or of any callidentifying information. The record will be made either contemporaneously with each  X-interception, or not later than 48 hours from the time each interception begins,  X(#(#and shall include: (#  X|-e(1)` ` the telephone number(s) or circuit number(s) involved;  Xe-e(2)` ` the date and time the interception started;  XN-e(3)` ` the date and time the interception stopped;  X7-e(4) ` ` the identity of the law enforcement officer presenting the authorization;  X -e(5)` ` the name of the judge or prosecuting attorney signing the authorization;  X -e(6)` ` the type of interception (e.g., pen register, trap and trace, "Title III"  X(#(# X-eXX` ` interception pursuant to 18 U.S.C.  2510 et seq. and collateral state  X(#(# X-statutes, Foreign Intelligence Surveillance Act ("FISA") 50 U.S.C.  1801 et (#(# X -seq.); and (#`  X!-e(7)` ` the names of all telecommunications carrier personnel involved in  X(#(# X"-eXX` ` performing, supervising, and internally authorizing, the interception, and the (#(#names of those who possessed knowledge of the interception. (#` "h$20*%%ZZ(#"Ԍ X-e(b)A separate record shall be kept of any instances of interception, and of the  X(#(#eidentities of third parties to which disclosure of callidentifying information is made. In eaddition to the information listed in (1) through (7) above, these records will provide a ecomplete discussion of the facts and circumstances surrounding the interception and edisclosure. Each record shall be maintained in a secure location accessible only by eauthorized carrier personnel for a period of ten (10) years from its creation.  X1-e(c)The officers of any telecommunications carrier shall assure that any employee, (#(# X -eagent, or officer of the carrier engaged in performing authorized interceptions for  X(#(# X -elaw enforcement personnel or having access to such information does not disclose  X(#(#  X -eto any other person any information about such activity. Any employee or officer  X(#(#ewho has access to such information shall sign a statement that provides as follows:  X -e(1)` ` the telephone number(s) or circuit identification number(s) involved;  X-e(2) ` ` the name of each employee or officer who effected the interception and (#(# Xy-e` ` possessed information concerning its existence, and their respective  X(#(#e` ` positions within the telecommunications carrier;  XK-e(3) ` ` the date and time the interception started;  X4-e(4)` ` the date and time the interception stopped;  X-e(5)` ` the type of interception (e.g., pen register, trap and trace, "Title III"  X(#(# X-e` ` interception pursuant to 18 U.S.C.  2510 et seq. and collateral state  X(#(# X-e` ` statutes, Foreign Intelligence Surveillance Act ("FISA") 50 U.S.C.  1801 et (#(# X-e` ` seq.);  X-e(6) ` ` a copy or description of the written authorization for the employee and  X(#(#e` ` officer to participate in surveillance activity; and  X-e(7) ` ` a statement that the employee or officer will not disclose information about (#(# X|-e` ` the interception to any person, not properly authorized by statute or court (#(# Xe-e ` ` order.  X7- 64.1705 ` ` Compliance statements  X -e(a)Each telecommunications carrier having annual revenues from telecommunications (#(#eoperations in excess of the threshold defined in 47 C.F.R.  32.9000 shall file with  X-ethe Commission a statement of the policies, processes and procedures it uses to comply (#(# X -ewith the requirements of this Subpart. These statements shall be filed with the  X(#(# X!-eSecretary, Federal Communications Commission, on or before ____________, and  X(#(# X"-eshall be captioned, "Interception Procedures" filed pursuant to Section 64.1704 of the (#(# X#-eCommission's Rules. Carriers seeking confidential treatment for any part of the  X(#(#  Xh$-estatement shall clearly state the authority justifying such treatment pursuant to Section (#(#"h$30*%%ZZ(#"ԑ X-e0.459 of the Commission's rules and shall fully document all facts upon which that (#(#ecarrier proposes to rely in its request for confidential treatment.  X-e(b)Any telecommunications carrier having annual revenues from telecommunications (#(#eoperations that do not exceed the threshold defined in 47 C.F.R.  32.9000 may elect:  Xv-e(1) ` ` to file the statement required in Section 64.1705 (a); or  X_-e(2)` ` to certify that it observes procedures specified in the submission made  X(#(#e` ` pursuant to Section 64.1705 (a). "H40*%%ZZ"