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X4  ) X'w #Xj\  P6G;9XP# Federal Communications Commission`(#FCC 98282 ă   yxdddy )  Њ#Xj\  P6G;9XP# v #X\  P6G;P#Before the  yO'0Federal Communications Commission&  X aWWashington, D.C. 20554  Xy'X` hp x (#%'0*,.8135@8:h#Xj\  P6G;9XP#   XK4  hp x*(08"$&@)+-H024P79X` hVrp x (#%'0*,.8135@8:"Ԍ X4ԙA. CALEA Assistance Capability Requirements  X4 } 5.    The basic requirements for meeting CALEA's mandates are contained in Section  !V103, which establishes four general "assistance capability requirements" that carriers must meet  X4to achieve compliance. Specifically, Section 103 requires a telecommunications carrier~z yO'ԍ The term "telecommunications carrier" is defined in section 102(8) of CALEA, 47 U.S.C.  1001(8). In the NPRM, we tentatively concluded that all providers of wireless or wireline telecommunications services for hire to the public are subject to CALEA. This tentative conclusion will be addressed in a future Report and Order. Examples of such providers (to the extent that they offer telecommunications services for hire to the public) are local exchange carriers, interexchange carriers, competitive access providers, satellitebased service providers, providers of commercial mobile radio service as set forth in Section 20.9 of our Rules, cable  {O 'operators, and electric and other utilities.  NPRM, 13 FCC Rcd at 316162  1617.#Xw PE37XP##Xw PE37XP#~ to:  !<(a) [E]nsure that its equipment, facilities, or services that provide a customer or subscriber with the ability to originate, terminate, or direct communications are capable of X(1) expeditiously isolating and enabling the government, pursuant to a court order or other lawful authorization, to intercept, to the exclusion of any other communications, all wire and electronic communications carried by the carrier within a service area to or from equipment, facilities, or services of a subscriber of such carrier concurrently with their transmission to or from the subscriber's equipment, facility, or service, or at such later time as may be acceptable to the government;  (2) expeditiously isolating and enabling the government, pursuant to a court order Xor other lawful authorization, to access callidentifying information that is reasonably available to the carrier(# )(A) before, during, or immediately after the transmission of a wire or electronic communication (or at such later time as may be acceptable to the government); and )(B) in a manner that allows it to be associated with the communication  to which it pertains, Xexcept that, with regard to information acquired solely pursuant to the authority for pen registers and trap and trace devices (as defined in section 3127 of title"e 0*%%ZZJ"  X418, United States Code),+$ yOy'ԍ Pen registers capture callidentifying information for numbers dialed from the facility that is the subject of  {OA'lawful interception (i.e., outgoing calls), while trap and trace devices capture callidentifying information for  {O 'numbers received by the facility that is the subject of lawful interception (i.e., incoming calls). H.R. Rep. No.  yO'103827, 103d Cong., 2d Sess., pt. 1, at 26 (1994).#Xw PE37XP#+ such callidentifying information shall not include any information that may disclose the physical location of the subscriber (except to the extent that the location may be determined from the telephone number);  X(3) delivering intercepted communications and callidentifying information to the government, pursuant to a court order or other lawful authorization, in a format such that they may be transmitted by means of equipment, facilities, or services procured by the government to a location other than the premises of the carrier; and  X(4) facilitating authorized communications interceptions and access to callidentifying information unobtrusively and with a minimum of interference with any subscriber's telecommunications service and in a manner that protects  X(A) the privacy and security of communications and callidentifying information not authorized to be intercepted; and X(B) information regarding the government's interception of  XK4communications and access to callidentifying information.oK yO'ԍ Section 103(a)(1)(4) of CALEA, 47 U.S.C.  1002(a)(1)(4). o  X4 } 6.    CALEA does not specify how these four assistance capability requirements are to  !&be met. Rather, it states only that telecommunications carriers, in consultation with manufacturers  !8and telecommunications support service providers, must ensure that the carriers' equipment,  X4 !Vfacilities, and services comply with the requirements._D yO'ԍ Section 106(a) of CALEA, 47 U.S.C.  1005(a)._ Manufacturers and telecommunications  X4 !support service providers are subject to a "cooperation" requirement, i.e., they are required to  !"make available to carriers the features and modifications necessary for carriers to comply with  X4 !"the requirements "on a reasonably timely basis and at a reasonable charge."Y yO"'ԍ Section 106(b) of CALEA, 47 U.S.C.  1005(b).Y Additionally, the  !Attorney General of the United States must consult with appropriate industry associations and  !Vstandardssetting organizations; with representatives of users of telecommunications equipment,"gd 0*%%ZZ"  !facilities, and services; and with state utility commissions "to ensure the efficient and industry X4wide implementation of the assistance capability requirements."X yOb'ԍ Section 107(a)(1) of CALEA, 47 U.S.C.  1006(a)(1). This authority was delegated by the Attorney General to the FBI, which has been playing a leading role in representing the interests of the law enforcement community on CALEA matters.  X4 }9 7.    Section 107(a)(2) of CALEA contains a "safe harbor" provision, stating that "[a]  !telecommunications carrier shall be found to be in compliance with the assistance capability  !requirements under Section 103, and a manufacturer of telecommunications transmission or  !switching equipment or a provider of telecommunications support services shall be found to be  !8in compliance with section 106, if the carrier, manufacturer, or support service provider is in  !compliance with publicly available technical requirements or standards adopted by an industry  !cassociation or standardsetting organization, or by the Commission under subsection (b), to meet  X 4 !_the requirements of Section 103."_  yO'ԍ Section 107(a)(2) of CALEA, 47 U.S.C.  1006(a)(2)._ Thus, the Act envisions that an industry association or a  !<standardssetting organization would set applicable standards. Individual carriers, however, are  !@free to choose any technical solution that meets the assistance capability requirements of CALEA,  !whether based on an industry standard or not. Carriers, therefore, have some degree of flexibility  !in deciding how they will comply with CALEA's Section 103 requirements. CALEA specifically  !states, however, that the absence of industry standards does not relieve a carrier of its obligation  X4to comply with the assistance capability requirements.ex yO'ԍ Section 107(a)(3)(B) of CALEA, 47 U.S.C.  1006(a)(3)(B).e  Xb4 }{ 8.    In addition to the safe harbor provision, section 107 also defines certain  !ICommission responsibilities under the Act. Specifically, upon petition, section 107(b) authorizes  !the Commission to establish, by rule, technical requirements or standards necessary for  X4 ![implementing Section 103.Y yO'ԍ Section 107(b) of CALEA, 47 U.S.C.  1006(b).Y Section 107(b) provides that a petition may be filed with the  !Commission (1) if industry associations or standardsetting organizations fail to issue technical  !requirements or standards, or (2) if a government agency or any other person believes that requirements or standards that were issued are deficient.  X4  }     9.    Section 107(b) specifies five factors that the Commission must consider as part of  !its efforts to establish technical requirements or standards to meet the assistance capability requirements of Section 103. Such technical requirements or standards must:   XN4   meet the assistance capability requirements of Section 103 by costeffective methods;"70*%%ZZ"ԑ X4 (#(#(#(#X   protect the privacy and security of communications not authorized to be intercepted;(#  X4   minimize the cost of such compliance on residential ratepayers;(#  X4  serve the policy of the United States to encourage the provision of new technologies and services to the public; and(#  X4  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 during any transition  XH4period.2H {O 'ԍ Id.2 (#  X 4  10.  Section 107(c) authorizes the Commission to extend the compliance date for telecommunications carriers' equipment, facilities, and services. On September 11, 1998, the Commission exercised its authority under section 107(c) by extending the deadline for  X 4compliance with Section 103 requirements from October 25, 1998 to June 30, 2000.w Z {O'ԍ See Extension Order, supra note 13. See also infra  22.w This extension applies to all telecommunications carriers proposing to install or deploy, or having installed or deployed, any equipment, facility or service prior to the effective date of Section 103, for that part of the carrier's business on which the new equipment, facility or service is  Xy4used.0y {O'ԍ See Section 107(c)(1)(4) of CALEA, 47 U.S.C.  1006(c)(1)(4). We note that a carrier is deemed to be  {O'in compliance with Section 103 as to its "old" equipment, facilities and services i.e., those installed or deployed before January 1, 1995 until such time as it is reimbursed by the Attorney General for all reasonable costs directly associated with modifications necessary to bring that equipment into compliance. Section 109(a), (d) of CALEA, 47 U.S.C.  1008(a), (d).0   XK4       B. Development Of Industry Interim Standard JSTD025  X4 }5  11.    Since early 1995, Subcommittee TR45.2 of the Telecommunications Industry  !Association (TIA) has been working to develop an industry standard that would satisfy the  !assistance capability requirements of Section 103 for wireline, cellular, and broadband PCS  X4 !Wcarriers.$\ {O) 'ԍ See TIA Comments at 15 n.43. We note that the DoJ/FBI Final Notice of Capacity states that wireline,  {O 'cellular, and PCS services "are of most immediate concern to law enforcement." See 63 Fed. Reg. 12218, at para. I.E.$ The standardssetting effort has included participation by industry and law  !@enforcement. In 1996, the Subcommittee received from the Federal Bureau of Investigation (FBI)  !0a document known as the Electronic Surveillance Interface (ESI). The ESI was law  !enforcement's recommendation for the logical and physical interfaces between a wireline, cellular," 0*%%ZZF"  !lor broadband PCS carrier's network and a law enforcement agency's electronic surveillance  ! collection facility. The ESI was developed at the request of industry to describe law  !}enforcement's vision and recommendations for the interface. The ESI defined the requirements  !for the delivery of both call content and call-identifying information to a law enforcement agency (LEA).  Xv4  }  12.    By the spring of 1997, TIA developed a final draft of a proposed CALEA industry  !standard. The draft standard defined services and features to support lawfully authorized  !electronic surveillance and the interfaces to deliver authorized intercepted communications and  !callidentifying information to a LEA. Specifically, the draft standard defined the intercept  !function in terms of five broad categories: access, delivery, service provider administration,  X 4 !collection, and law enforcement administration.e  {O| 'ԍ These five categories are described in  36, infra.e This standard was submitted for balloting to  !all participants in the standardssetting process under procedures of the American National  X 4 !/Standards Institute (ANSI). Z yO'ԍ Balloting was open to industry, law enforcement, and any other interested party, with a deadline of May 12, 1997. The law enforcement community unanimously opposed adoption  !of this standard, and it was voted down. The FBI, on behalf of this community, attached a  !'lengthy critique of the draft standard to its ballot, including specific recommendations for  X4changes.o yO'ԍ FBI Comments to TIA Subcommittee TR45.2 Ballot SP-3580 (May 12, 1997).o  Xb4  }  13.    The FBI's objections to the draft standard centered around a list of technical  !capabilities that it contended are necessary to meet CALEA's requirements, but that were not  !lincluded in the industry interim standard. The FBI's list, which has come to be known as the"4 B0*%%ZZ"  X4 !c"punch list," originally contained 11 items, and now contains nine items. yOy'ԍ The two additional capabilities originally requested by the FBI were "standardized delivery interface" and  {OA'"separated delivery."  See DoJ/FBI Comments of May 8, 1998, last attachment. The former capability would limit the number of potential delivery interfaces law enforcement would need to accommodate from telecommunications carriers, while the latter would require the separate delivery to law enforcement of wiretap  yO'information for each party to a conference call. However, in a letter of February 3, 1998 from Stephen R. Colgate, Assistant Attorney General for Administration, to Mr. Tom Barba, Attorney at Law, Steptoe & Johnson  yO+'LLP,   counsel for TIA, DoJ states that while it believes that a single delivery interface would be cost effective  yO'and of great benefit to both law enforcement and telecommunications carriers, it finds that such an interface is not mandated by CALEA; and further states that while separated delivery would be useful for effective electronic  {O 'surveillance, it finds that such delivery is also not mandated by CALEA. See letter, at 3. Specifically, the FBI's  X4punch list identifies the following capabilities it believes must be provided under CALEA:d  {O 'ԍ See DoJ/FBI ex parte filing of July 1, 1998. Each of the nine punch list items is described in greater  {O 'detail below. See infra  67128.  X4 !/1) Content of subject-initiated conference calls Would enable law enforcement to access the  ! content of conference calls supported by the subject's service (including the call content of parties  X4on hold).5   yO'ԍ We note that confusion may arise over the terms "subscriber" and "subject." At pp. 2728 of their March 27, 1998 Joint Petition for Expedited Rulemaking, DoJ/FBI define these terms as follows: XWhen we refer to "subscriber," we are referring to the person or entity whose "equipment, facilities, or services" (47 U.S.C.  1002(a)(1)) are the subject of an authorized law enforcement surveillance activity. The subscriber often will be a person or entity suspected of criminal activity, but in some instances, the subscriber will simply be someone whose relationship to a suspected criminal (e.g., spouse or employer) makes it likely that criminal activity will be transacted or discussed over the subscriber's facilities. When we refer to "intercept subject" or "subject," we are referring to any person who is using the subscriber's equipment, facilities, or services, and whose conversations (or dialing activity) therefore would be capable of being acquired during an interception. In a particular investigation, the "intercept subjects" could include the subscriber, who may or may not be involved in criminal activity; a non {O^'subscriber who is not involved in criminal activity; or a nonsubscriber who is involved in criminal activity.(#5  !2) Party hold, join, drop Messages would be sent to law enforcement that identify the P!P!P!P!active  !parties of a call. Specifically, on a conference call, these messages would indicate whether a party is on hold, has joined or has been dropped from the conference call.  ! 3) Subject-initiated dialing and signaling information Access to all dialing and signaling  !information available from the subject would inform law enforcement of a subject's use of features (such as the use of flash-hook and other feature keys). " z 0*%%ZZ "Ԍ !"4) In-band and out-of- band signaling (notification message) A message would be sent to law  X4 !enforcement whenever a subject's service sends a tone or other network message to the subject  X4or associate (e.g., notification that a line is ringing or busy).  X4 !<5) Timing information Information necessary to correlate callidentifying information with the  X4call content of a communications interception.b!Z yO 'ԍ Delivery within three seconds of the event producing the callidentifying information is requested, together  {O'with a time stamp indicating the timing of the event within an accuracy of 100 milliseconds. See DoJ/FBI Joint Petition for Expedited Rulemaking, filed March 27, 1998, at 5152.b  !c6) Surveillance status MessageLL that would verify that an interception is still functioning on the  XL4appropriate subject.  X 4 !7) Continuity check tone (c-tone) nnElectronic signal that would alert law enforcement if the """"facility used for delivery of call content interception has failed or lost continuity.  !8) Feature status Would affirmatively notify law enforcement of any changes in features to which a subject subscribes.  X4 !c9) Dialed digit extraction" yO/'ԍ This capability has also been referred to as "postcutthrough dialing and signaling." KKInformation would include those digits dialed by a subject after the  X}4initial call setup is completed.  XO4  }  14.    After the close of balloting, Subcommittee TR45.2 held a number of meetings and  !made changes to the draft industry standard, including a number of changes recommended by the  !/FBI. However, based on the concerns discussed below, none of the FBI punch list items were  !added to the industry standard. The Subcommittee recommended that the revised standard be  !cconsidered as a joint TIA/Committee T1 Interim Standard and reballoted under TIA procedures  X4 !rather than ANSI's. #z yO'ԍ ANSI voting is generally open to all interested parties, whereas TIA / Committee T1 voting is limited to  {O'TIA members. Committee T1 is the wireline standards setting body see infra  15. An interim standard, however, is valid for a period of only three years and  !is considered by ANSI as a "trial use." TIA adopted the recommendations, and the revised draft  !standard was submitted for voting in the fall of 1997. Because no law enforcement agencies are  !members of the TIA or Committee T1, however, only industry entities were eligible to cast ballots.  XR4 } 15.    The industry unanimously approved the draft standard as fulfilling the requirements  !@mandated by CALEA. In December 1997, the TIA and Committee T1, sponsored by the Alliance  !for Telecommunications Industry Solutions, announced the joint publication of interim standard"$ #0*%%ZZ/"  X4 !JSTD025, Lawfully Authorized Electronic Surveillance (JSTD025, interim standard, or industry  !interim standard). This standard defines services and features required to support lawfully  !authorized electronic surveillance and specifies interfaces necessary to deliver intercepted  !communications and callidentifying information to a LEA. TIA stated that compliance with J X4STD025 satisfies the "safe harbor" provisions of CALEA.  Xx'C. Petitions for Rulemaking  Xa4  XJ4 } 16.    In July 1997, before the industry interim standard was released, the Cellular  !cTelecommunications Industry Association (CTIA) filed a petition for rulemaking on behalf of its  !Imembers requesting that the Commission establish a standard to implement the requirements of  !Section 103, pursuant to the Commission's authority under section 107(b). CTIA contended that  !<the standards setting process was deadlocked, and that it was unlikely that a standard would be  !developed in the near future. CTIA attached to its petition the draft industry standard that  ! ultimately became JSTD025, and argued that this draft standard met the functional requirements  X 4of CALEA in their entirety.$  yO"'ԍ In the Matter of Implementation of the Communications for Law Enforcement Act, CTIA Petition, filed July 16, 1997.  X{4  } 17.    In August 1997, comments on the CTIA petition were filed jointly by the Center  Xd4 !3for Democracy and Technology (CDT) and the Electronic Frontier Foundation (EFF).h%Xd  yO5'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).h CDT/EFF  !generally supported CTIA's request to adopt the proposed industry standard; however, they  X64 !recommended the deletion of provisions relating to subject location and packetmode information.  !In March 1998, following adoption of the industry interim standard, DoJ/FBI jointly filed a  !motion to dismiss CTIA's Petition for Rulemaking on the grounds that the December 1997  X4 !adoption of the interim standard rendered CTIA's petition moot.&@ yO'ԍ Joint Motion to Dismiss CTIA's July 16, 1997 Petition for Rulemaking, filed March 27, 1998. As discussed below, we agree,  X4and dismiss CTIA's July 1997 Petition for Rulemaking.Y' {O['ԍ See discussion infra, section III.G.Y  X4  }  18.    On March 26, 1998, CDT filed a petition for rulemaking, requesting that the  !Commission intervene in the implementation of CALEA. CDT reiterated the position it and EFF  !had enunciated in August 1997, arguing that JSTD025 goes too far in permitting location  !information capabilities and fails to protect the privacy of packetmode communications. CDT  !<further argued that the additional surveillance enhancements sought by the FBI in the punch list"P b '0*%%ZZ"  !<are not required under CALEA. CDT stated that the telecommunications industry and the FBI  !had failed to agree on a plan for preserving a narrowlyfocused surveillance capability that would  !qprotect privacy and, further, were now mired in an argument over designing additional  !surveillance features into the nation's telecommunications system. Finally, CDT stated that  !<compliance with JSTD025 was not reasonably achievable and requested that the Commission  !indefinitely delay implementation of CALEA while a more narrowlyfocused standard consistent  Xv4with the intent of CALEA is developed.U(v {O'ԍ CDT Petition, supra note 4, at iiii. U  XH4  } 19.    On March 27, 1998, DoJ and the FBI jointly filed a petition for expedited  !rulemaking, asking the Commission to correct deficiencies in the industry standard by establishing  !additional technical standards that meet the requirements of CALEA. DoJ/FBI claim that the  !interim standard adopted by industry is deficient because: 1) it does not ensure that law  !henforcement will be able to receive all of the communications content and callidentifying  !linformation that carriers are obligated to deliver under CALEA; and, 2) it fails to ensure that  X 4 !information will be delivered in a timely manner.V) Z {O'ԍ DoJ/FBI Petition, supra note 4, at 12.V DoJ/FBI set forth, as a proposed rule, the  X 4 !features (i.e., the punch list items) they believe should be added to the interim standard to correct  X4 !its deficiencies.A* {O/'ԍ Id. at Appendix 1.A DoJ/FBI request that the Commission leave the industry interim standard in  X{4effect pending the issuance of a final decision.+{~ {O'ԍ DoJ/FBI proposed that we issue that decision no later than September 1998. Id. at 67.  XM4  }   20.  On April 2, 1998, TIA filed a petition for rulemaking, asking the Commission to  !resolve the dispute as to whether the interim standard is overinclusive or underinclusive. TIA  !requested that we: 1) immediately announce suspension of enforcement of CALEA until we  !make our determination of a permanent standard; 2) establish a reasonable compliance schedule  !Vof at least 24 months to implement the permanent standard; 3) undertake an expedited schedule  !for establishing a permanent standard; and 4) remand any further technical standardization work  X4to TIA Subcommittee TR45.2.Z, yO'ԍ TIA Petition for Rulemaking, filed April 2, 1998.Z  X4 } 21.    On April 20, 1998, the Commission's Wireless Telecommunications Bureau and  X~4 !8Office of Engineering and Technology released a Public Notice in this proceeding soliciting  !ccomment on the above petitions, as well as soliciting comment on whether the October 25, 1998"i ,0*%%ZZ"  X4 !3deadline for compliance with CALEA's capability requirements should be extended.@- {Oy'ԍ See supra note 5.@ The Public  X4 !"Notice also requested specific comment on the scope of the assistance capability requirements  X4 !necessary to satisfy the obligations imposed by CALEA. In particular, the Public Notice  !@requested analyses of whether the technical requirements discussed in the petitions from CDT and  !/from DoJ/FBI are necessary for carriers to meet CALEA's Section 103 requirements. Finally,  X4 !&the Public Notice requested comment on remanding any additional standards development to TIA  X~4Subcommittee TR45.2..~Z {O 'ԍ See Public Notice at 4. Unless otherwise noted herein, "comments" and "reply comments" are those that were filed on May 20, 1998, and June 12, 1998, respectively, regarding standards issues.  XP4  } 22.    A number of parties petitioned the Commission to extend the October 25, 1998  !deadline for complying with the core features of CALEA, and on September 11, 1998, the  X" 4 !Commission released a Memorandum Opinion and Order granting such an extension until June  X 4 !30, 2000.T/  {Or'ԍ Extension Order, supra note 13.T Pursuant to our authority under section 107(c) of CALEA, we determined that  !compliance with the assistance capability requirements of Section 103 was not reasonably  !cachievable by any telecommunications carrier through the application of available technology by  X 4 ! CALEA's compliance deadline of October 25, 1998.C0 F yO'ԍ 47 U.S.C.  1006(c)(2).C Therefore, we granted a blanket extension  !Nof CALEA's compliance deadline until June 30, 2000, for all telecommunications carriers  X4 !similarly situated to the petitioners, i.e., those carriers proposing to install or deploy, or having  !installed or deployed, any equipment, facility or service prior to the effective date of Section 103,  Xn4 !for that part of the carrier's business on which the new equipment, facility or service is used.Z1n {O'ԍ Extension Order, supra note 13.Z  X)'c III. DISCUSSION   X'c A.Authority and Approach  X4  X4 }` 23.  Upon petition, section 107(b) of CALEA empowers the Commission to establish,  !by rule, technical requirements or standards to meet the assistance capability requirements of"h 10*%%ZZO"  X4 !Section 103.@2 yOy'ԍ 47 U.S.C.  1006(b).@ Additionally, section 301(a) of CALEA states that "[t]he Commission shall  X4prescribe such rules as are necessary to implement the requirements of [CALEA]."?3X yO'ԍ 47 U.S.C.  229(a).?  X4 } 24.    In fulfilling our obligations under CALEA, our evaluation in this proceeding will  !closely follow the plain language of the Act. Pursuant to our statutory authority, we will  X4 !8separately examine the two contested features of the JSTD025 standard (i.e., the location  !/information and packetmode features opposed by CDT) and the punch list items sought by the FBI, to determine whether each meets the mandates of Section 103.  X34  } 25.    As an initial matter, we will first determine whether the specific item we are  X 4 !evaluating meets the assistance capability requirements set forth in Section 103(a)(1)(4).4  yO'#X\  P6G;P##X\  P6G;P#э 47 U.S.C.  1002(a)(1)(4). In  X 4 !doing so, we propose to interpret these provisions narrowly.5 x {O.'#X\  P6G;P#э See Senate Report at 23, House Report at 23. As noted above, we look to the  !plain language, its context, and, if necessary, any legislative history that assists in ascertaining  !Congressional intent. Specifically, we explore below the intent of Congress' use of the terms  !"equipment, facilities or services" in Section 103(a)(1) as it relates to the content of subject !initiated conference calls. We also seek to interpret Section 103(a)(2)'s provision that call !'identifying information must be provided to a LEA only if that information is reasonably  X{4 !available to a telecommunications carrier. In this regard, we tentatively conclude that before  !we can make a determination whether a specific technical requirement meets the mandates of  !Section 103's assistance capability requirements, the Commission must determine whether the  !information to be provided to a LEA under Section 103(a)(2) is reasonably available to the  X4 !+carrier. The Act does not specify how the term "reasonably available" should be defined or  !interpreted, and the Act's legislative history offers little additional guidance. We therefore  ![request comment on what factors the Commission should use in determining whether the information to be provided to a LEA under Section 103(a)(2) is reasonably available.  X4 } 26.    Specifically, we request comment on how cost should be considered in our  !determination of reasonable availability. Further, we note that carriers use a variety of system  !architectures and different types of equipment, leading us to believe that reasonable availability  !is also likely to vary from carrier to carrier. Commenters should discuss how the Commission  !can evaluate whether a particular technical requirement is reasonably available in these  !Ncircumstances and discuss how the application or interpretation of these terms in Section"9 50*%%ZZ"  !d103(a)(2) is similar to or different from the application or interpretation of "reasonably achievable" in section 109(b), and the factors listed there.  X4  } 27.    We also ask commenters to evaluate the type of information that has been  !traditionally available under pen register and trapandtrace authorizations, and whether the  !provision of such information to LEAs, in light of the statutory definitions of "pen register" and  Xv4 !"trap and trace device",l6v yO'#X\  P6G;P#э 18 U.S.C.  3127(3), (4).l and judicial interpretations of them, provide guidance or represent possible factors for determining "reasonable availability."  X14  }S 28.    Finally, we also invite comment on whether and, if so, under what circumstances  !and to what extent, information that does not qualify as callidentifying information under section  !102(2) or otherwise is not "reasonably available" under Section 103(a)(2), may nevertheless  X 4 !qualify as call content information under Section 103(a)(1) and the definitions of "wire and  !}electronic communications" in 18 U.S.C.  2510(1), (12). Commenters should take into account  !that the provisions of Section 103(a)(1) do not include a criterion of "reasonable availability."  X4  }       29.    If we conclude that the item in question constitutes a technical requirement that  !<meets the Section 103 assistance capability requirements, we will then proceed to analyze each  !of the factors identified by section 107(b) and seek comment on whether a particular technical  !requirement: (1) meets the assistance capability requirements of Section 103 by costeffective  !~methods; (2) protects the privacy and security of communications not authorized to be  !pintercepted; (3) minimizes the cost of such compliance on residential ratepayers; and, (4) serves  !the policy of the United States to encourage the provision of new technologies and services to  X4 !the public.n7X yO'#X\  P6G;P#э 47 U.S.C.  1006(b)(1)(4).n Additionally, section 107(b)(5) requires the Commission to provide a reasonable  !Atime and conditions for compliance with and the transition to any new standard, including  !defining the obligations of telecommunications carriers under Section 103 during any transition  X4 !qperiod.j8 yOC'#X\  P6G;P#э 47 U.S.C.  1006(b)(5).j Thus, we will also seek comment on issues bearing on our section 107(b)(5)  !determinations. If, on the other hand, we tentatively conclude that a specific technical  !prequirement falls outside of the parameters of the assistance capability requirements established  !}by Section 103, we will seek comment on our tentative conclusion, and request that commenters  !cresponding to this conclusion provide support for their agreement or disagreement by thoroughly analyzing the section 107(b) factors mentioned above. " x80*%%ZZ"Ԍ X4 }q 30.    We emphasize that, because CALEA specifically requires us to consider the section  !107(b) factors, commenters are strongly encouraged to provide us with information as detailed  !and specific as possible. For sections 107(b)(1) and (3), for example, we seek detailed comment  !"regarding the costs of adding a feature to a telecommunications carrier's network and on what,  !if any, impact of such costs will have on residential ratepayers. Commenters should consider the  !3costs to manufacturers in developing the equipment or software needed to implement the technical  !requirement, as well as the cost to carriers to install and deploy such equipment. Commenters  X_4 !should be specific as to which entities would incur the cost of adding particular features; e.g.,  !manufacturers, local exchange carriers (LECs), interexchange carriers (IXCs), or commercial  X34 !@mobile radio service (CMRS) providers, etc. Commenters should also be specific as to what costs  !_would be incurred for hardware, as opposed to software upgrades to carriers' networks, and  !whether some of these upgrades would have other uses in the networks. If costs are likely to be  !passed on to residential ratepayers, those costs should be identified, as well as specific mechanisms that could be used to minimize such costs.  X 4 } 31.    Under section 107(b)(2), if a party believes that a proposed technical requirement  !would not protect the privacy and security of communications not authorized to be intercepted,  !we request comment on modifications or alternative technical requirements that would enable  !ySection 103's capability requirements to be met. In addition, we seek detailed information on  !'whether our determination that a particular feature must be provided under CALEA will  !encourage or discourage the provision of new technologies and services to the public. Will the  !/implementation of a particular technical requirement constrain a carrier's ability to develop new  !services or technologies? Commenters should provide a projected timeline for each technical  !requirement, identifying the time needed to develop, test, and deploy it. Additionally,  !pcommenters should address the extent to which the capacity requirements of section 104 should  !affect our determinations under section 107(b). In this regard, we observe that several  !commenting parties have contended that the nearly two and one-half years of delay in publication  !of the final notice of capacity has, in turn, impaired the ability of standards-setting associations,  !telecommunications equipment manufacturers, and telecommunications carriers to establish  Xi4 !/capability standards pursuant to Section 103, because capability standards cannot be completed  XR4 !without first knowing the capacity that those capability standards must support.9R {O'ԍ See, e.g., Northern Telecom Inc. Comments, CC Docket No. 97213, May 8, 1998, at 4. We note that, pursuant to Section 104 of CALEA, DoJ has published in the Federal Register a final notice of capacity.  {O]'Implementation of Section 104 of the Communications Assistance for Law Enforcement Act, Final Notice of  {O' 'Capacity, 63 Fed. Reg. 12218 (DoJ/FBI, March 12, 1998). See also Initial Notice of Capacity, 60 Fed. Reg.  yO '53643 (DoJ/FBI, October 16, 1995); Second Notice of Capacity, 62 Fed. Reg. 1902 (DoJ/FBI, January 14, 1997).Ġ Finally, we ask  !for comment on any conditions necessary for compliance and any specific obligations that should be imposed on telecommunications carriers during the transition to a new standard. " ~90*%%ZZ"Ԍ X4  }, 32.    We note that the tentative conclusions we reach in this Further NPRM focus on  !the technical requirements that the petitioners have asked us to address in their petitions pending  X4 !before us, i.e., the two contested features of JSTD025 and the nine punch list items. In making  !}our tentative decision, we recognize that CALEA requires carriers to ensure that their networks  !can provide the capabilities defined in Section 103, but does not mandate use of, or adherence  !to, any particular standard. In other words, compliance with the industry standard is voluntary,  !<not compulsory. As a result, carriers are free to develop CALEA solutions in any manner they  !choose. Thus, a carrier may choose to utilize an industry standard as a safe harbor, or they may  !hchoose to implement other solutions that meet the capability requirements of Section 103.  !However, in order for an adopted industry standard to satisfy the safe harbor provision of section  X 4 !V107(a),A:  yO 'ԍ 47 U.S.C 1006(a)(2).A it must incorporate all of the technical requirements that we ultimately determine meet the assistance capability requirements of Section 103.  X 4  }O  33.    We note further that this proceeding does not involve any attempt to interpret  !statutes other than CALEA or define the scope of authorizations needed by LEAs to intercept or  !Jobtain call content or callidentifying information. Rather, this proceeding is limited to  !determining, as a safe harbor, what capabilities each carrier must provide if and when presented  !with a proper authorization or court order to expeditiously provide LEAs access to call content and callidentifying information.  X64  }\ !34.    We believe that industry is in the best position to determine how to implement  !these technical requirements most effectively and efficiently. Standardssetting organizations,  !manufacturers, and/or individual telecommunications carriers should develop the technical  ![requirements consistent with our ultimate determinations reached in this proceeding. We  !tentatively conclude that it would then be appropriate for industry, in consultation with the law  X4 ! enforcement community, to develop a final "safe harbor" standard for CALEA compliance.];X {O'ԍ See discussion infra,  132133. ] We seek comment on this conclusion.  X~4  }J "35.    Finally, we also note that manufacturers and carriers are free to develop and deploy  !additional features and capabilities, beyond those required by CALEA, in efforts to assist law  !enforcement agencies in conducting lawfullyauthorized electronic surveillance. Such capabilities,  !yhowever, will not be subject to any of CALEA's obligations, including cost recovery, and will  !not affect any party's obligations under CALEA in any way. Thus, nothing in the instant Further  !/NPRM should be construed as limiting or proposing to limit telecommunications manufacturers,  !carriers or support service providers' ability to negotiate with law enforcement agencies to add  !additional capabilities to the carrier's systems, nor to define a maximum level of capabilities";0*%%ZZ"  X4 !Navailable to law enforcement under the applicable provisions of law.{< {Oy'ԍ See 18 U.S.C.  25102522; see also infra note 63.  { We now turn to a  !discussion of whether we should reexamine the uncontested portions of JSTD025 as part of our section 107(b) inquiry.  X'    B.Industry Interim Standard JSTD025  Xv4 }z     #36. The industry interim standard, JSTD025, which applies only to wireline, cellular,  !and broadband PCS carriers, specifies that telecommunications carriers are to provide LEAs with  !8two telecommunications channels to perform electronic surveillance call content channels  X14 !}(CCCs) and call data channels (CDCs).=X1Z yO< 'ԍ When a phone number is dialed, that number is delivered through the CDC from the device wiretapping the phone line to the LEA. Once a connection is established, the conversation is delivered to the LEA via the CCC.  JSTD025 defines the five functions of the intercept  X 4architecture to be used.<> z yOE'ԍ JSTD025 at 2830.< Those functions are:  X 4  },X  Access Provides the LEA with the ability to isolate the subject's call content or  }call-identifying information accurately and unobtrusively. The access function helps  }to prevent the unauthorized access, manipulation, and disclosure of intercept controls, call content, and callidentifying information.(#   Xy4  )Delivery Accepts call content and call-identifying information from the access function and delivers it to one or more LEA collection functions. Ensures that the call content and call-identifying information that are delivered are authorized for a particular LEA, and thus also prevents the unauthorized access, manipulation, and disclosure of intercept controls, call content, and call-identifying information.(#  X'  X4 )Collection - Receives and processes call content and call-identifying information for the subject. (This function is the responsibility of the LEA.)(#  X4  )Service Provider Administration - Controls the carrier's electronic surveillance functions. (This function is beyond the scope of the interim standard.)(#  XN4  )Law Enforcement Administration - Controls the LEA electronic surveillance functions. (This function is the responsibility of the LEA, and is also beyond the scope of the interim standard.)(#"  >0*%%ZZc"Ԍ X4 }Wԙ    $37.   Telecommunications carriers and manufacturers in their comments support adoption  !tof JSTD025 as the final CALEA standard. The Ameritech Operating Companies and Ameritech  !Mobile Communications, Inc. (Ameritech) state that JSTD025 is industry's attempt to  !prealistically and reasonably interpret the requirements of CALEA consistent with Title III of the  !Omnibus Crime Control and Safe Streets Act of 1968, modified by the Electronic  X4 !Communications Privacy Act of 1986 (collectively, "Title III").?z yO'ԍ Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90351, 82 Stat. 212 (1968), and Electronic Communications Privacy Act of 1986, Pub. L. No. 99508, 100 Stat. 1848 (1986) (together codified as amended in 18 U.S.C.  25102522 and in other sections of 18 U.S.C.). These statutory provisions delineate the scope and limitations of federal wiretap surveillance authority. In addition, we note that the various states  {O& 'have their own statutory provisions governing surveillance authority. See, e.g., C.R.S.A.  1615102 (Colorado); Ann.Code.Md., Courts and Judicial Proceedings,  10402 (Maryland); and McKinney's CPLR  4506 (New York). Ameritech contends that the  !FBI's challenge of only a limited number of items not included in JSTD025 is a testament to  X_4the industry's efforts in developing a workable solution.D@_  yO'ԍ Ameritech Comments, at 23.D   X14  } %38.   BellSouth Corporation, Inc., BellSouth Telecommunications, Inc., BellSouth  !_Cellular Corp., BellSouth Personal Communications, Inc., and BellSouth Wireless Data, L,P.  X 4 !(BellSouth) request that we adopt JSTD025 in its present form pursuant to section 107.BA  yON'ԍ BellSouth Comments, at 2.B  !VBellSouth maintains that the FBI is attempting to use CALEA as a vehicle to require carriers to  !build technology into their systems to give law enforcement new expanded surveillance  !capabilities, and that such expanded capabilities are in contrast to Congress's intent that CALEA  !should merely ensure that lawful surveillance capabilities not be diminished. BellSouth concludes  !"that the legislative history of CALEA makes clear that its purpose is to preserve (not enhance)  !government electronic surveillance capabilities; to protect the privacy of customers'  !communications; and to not impede the industry's development and deployment of new  XK4technology, features, or services.8BK*  {O&'ԍ Id. at 4.8  X4 } &39.  AT&T Corporation (AT&T) states that the Commission should categorize standards  !issues into four distinct components for examination (call content, callidentifying information,  !lprivacy protection, and wiretap administration), and ask whether the industry standard meets  X4 !cCALEA's requirements, if any, for each category.=C  yOE#'ԍ AT&T Comments, at 3.= AT&T concludes that we should affirm J"L C0*%%ZZ{"ԫ !STD025 and reject the additional, enhanced surveillance features sought by DoJ/FBI in their  X4Petition.9D {Ob'ԍ Id. at 22.9  X4  } '40.  TIA states that the vast majority of comments support the conclusion that JSTD !<025 is consistent with CALEA. TIA contends that CALEA imposes a standard of "reasonable  !pavailability" rather than "historical availability," and that section 107(b) of that statute permits the  !Commission to modify a telecommunications industry "safe harbor" compliance standard only  !lwhere the standard is deficient for failure to satisfy the assistance capability requirements of  !Section 103(a). TIA maintains, however, that JSTD025 is not deficient and therefore no  X14Commission action is required.=E1Z yO< 'ԍ TIA Comments, at 24.=  X '  X 4 }   (41.  DoJ/FBI state that JSTD025 includes a number of important capabilities that are  !required by law enforcement, but argue that the interim standard is deficient by virtue of its  !failure to include the requested punch list capabilities. DoJ/FBI claim that every one of the  !capabilities in their punch list was originally included by industry itself in the initial working  X 4 !3draft document (PN3580) for the industry standard.JF  yOB'ԍ DoJ/FBI Reply Comments, at 1516.J To remedy this alleged deficiency, DoJ/FBI  !crecommend that we use the proposed rule set forth in their March 1998 Petition as the basis for  !uour standards rulemaking. Alternatively, DoJ/FBI state that we could base our standards  !rulemaking on an alternative rule that we preliminarily conclude is warranted under section  XK4107(b) of CALEA.AGKz yOv'ԍ DoJ/FBI Comments, at 28.A  X4  } )42.  CDT disagrees with all of the above parties, arguing that JSTD025 is deficient  !cby virtue of being overinclusive. CDT states that the initial wiretap law, Title III, had as its dual  !ypurpose protecting the privacy of wire and oral communications and delineating on a uniform  !basis circumstances and conditions under which the interception of wire and oral communications  X4 !may be authorized. CDT further states that the Electronic Communications Privacy ActAH  {O|'ԍ See supra note 63.A  !extended Title III to wireless and nonvoice communications and established rules for law  X4 !"enforcement's use of pen registers and trap and trace devices.@I yO"'ԍ CDT Comments, at 1012.@ CDT contends that Congress  !sought to preserve an appropriate balance in CALEA, but that the FBI's approach would require  !the opposite of what Congress intended. Specifically, CDT objects to JSTD025 providing"e, I0*%%ZZ"  !location information and packetmode call content information to law enforcement, and maintains  !that the additional capabilities requested by DoJ/FBI would provide a flood of constitutionally !protected information to law enforcement that would go well beyond anything that has historically  !been available under a pen register or trap and trace authority. Additionally, CDT asserts,  !provision of capabilities that go beyond CALEA's requirements would drive up costs for  X4 !ytelecommunications carriers. CDT concludes that the DoJ/FBI approach to CALEA, unless  !_rejected by the Commission, would impermissibly expand the amount of information that law  X_4enforcement would receive under pen register and trap and trace authority.DJ_ yO'ԍ CDT Reply Comments, at 25.D  X14 }z *43. The Electronic Privacy Information Center (EPIC)/EFF/American Civil Liberties  X 4 !Union (ACLU) argue that JSTD025 exceeds the scope of CALEA and thus should be rejected.FK X yO# 'ԍ EPIC/EFF/ACLU Comments, at 1.F  !EPIC/EFF/ACLU state that the Commission must adhere to the privacy protections afforded by  !Zthe Fourth Amendment (against unreasonable searches and seizures) and Congressional mandates,  !provide privacy protections that withstand the evolution of new technologies, and construe law  !enforcement's surveillance authority narrowly with respect to new technologies.  !yEPIC/EFF/ACLU contend that neither provision of location information nor packet data was  ! mandated by CALEA. They further contend that CALEA expands the privacy protections of the  !&1986 Electronic Communications Privacy Act in the area of cordless telephones and certain radio !based telecommunications, and that the Act was narrowly drawn to remedy enumerated FBI  XK4 !complaints, not to extend law enforcement's general surveillance authority.;LK {O'ԍ Id. at 512.; Additionally,  !EPIC/EFF/ACLU assert that the proceedings leading up to adoption of the interim standard were  !effectively closed to nonlaw enforcement and nontelecommunications industry participants.  !'EPIC/EFF/ACLU conclude that the Commission should reject the industry standard and  X4commence a proceeding to establish the standards that will be used to implement CALEA.<Mz {O'ԍ Id. at 2829.<  X4  } +44.  Discussion. In seeking to fulfill our obligations under the Act, the Commission  !"acknowledges the immense time and effort both industry and government representatives have  !put into the development of CALEA standards. We also appreciate the input and involvement  !of privacy organizations in this proceeding. We further note that the Act expresses a preference  Xg4 !for industry to set CALEA standards, in consultation with the Attorney General,Ng  yO$#'ԍ 47 U.S.C.  1006(a)(2) (allowing "safe harbor" based on industry standard). and that the  !"Act's legislative history also reveals that Congress envisioned that industry would have primary"PN0*%%ZZ"  X4 !responsibility in defining standards.O$ {Oy'ԍ See H.R. Rep. No. 103827, reprinted in 1994 U.S.C.C.A.N. 3489, 3499 (1994) ("The legislation provides  {OC'that the telecommunications industry itself shall decide how to implement law enforcement's requirements."); id. at 3506 ("section [107] establishes a mechanism for implementation of the capability requirements that defers, in the first instance, to industry standards organizations").  Consequently, we believe that the most efficient and  !effective method for ensuring that CALEA can be implemented as soon as possible is to build on the work that has been done to date.  X4 }K ,45. We therefore do not intend to reexamine any of the uncontested technical  !requirements of the JSTD025 standard. Instead, we will make determinations only regarding  !whether each of the location information and packetmode provisions currently included within  !RJSTD025, and the nine punch list items that are currently not included, meet the assistance  !capability requirements of Section 103. We base this approach on the fact that the issues raised  !lin the petitions and comments filed in this proceeding focus solely on the location information  !and packetmode provisions of JSTD025 and the nine punch list items sought by the FBI.  X 4 !Accordingly, these features will be evaluated separately.IP  {Oh'ԍ See infra  48128.I We further note that no party has  !raised any specific challenges to JSTD025 other than with respect to these issues, and we have  X 4 !&not been presented with any compelling reason to reexamine the entire standard.Q F yO'ԍ While EPIC/EFF/ACLU recommend that we reject JSTD025, they do not identify any particular deficiencies in it other than its inclusion of location and packetmode information, which constitute only a small portion of the standard's capabilities. Also, while they assert that they were precluded from participating in the  {O$'proceeding leading up to adoption of JSTD025, see supra  43, they have not claimed that they were precluded  {O'from participating in the open ANSI balloting process. See supra  1112 & note 28. Once the draft standard  {O'was voted down in the ANSI process, JSTD025 was adopted by TIA as an interim standard that involved only  {O'industry (and not law enforcement or privacy) entities. See supra  1415. We tentatively  !Vconclude that by limiting our inquiry to only these specific technical issues, we will better enable  !<manufacturers and carriers to build on the extensive work already completed or in process, and  !Wpermit them to deploy CALEA solutions on a more expedited basis. Accordingly, the uncontested technical requirements are beyond the scope of this proceeding.  Xb4  XK4 }  -46.  In establishing technical requirements or standards, section 107(b)(5) requires the  !Commission to provide a "reasonable time" for carriers to comply with and/or transition to any  !new standards and to define the obligations of telecommunications carriers under Section 103  X4 !during any transition period.CR  yOE"'ԍ 47 U.S.C.  1006(b)(5).C We previously concluded in our decision under section 107(c) that  !telecommunications carriers must have installed CALEAcompliant equipment and facilities based"R0*%%ZZ"  X4 !on the "core" features of JSTD025 by June 30, 2000.dS {Oy'ԍ See Extension Order, supra note 13, at  46.d A footnote in that decision indicated  !that the "core" of JSTD025 excludes both the location information feature and the packetmode  X4 !feature.<TZ {O'ԍ Id. at n.139.< We now clarify those findings as follows. JSTD025 represents an attempt by  !industry to develop a standard that carriers may choose to adopt voluntarily as a means to comply  X4 !with CALEA's "safe harbor" provision set forth in section 107(a).@U yOA 'ԍ 47 U.S.C.  1006(a).@ We further recognize that  !the statute leaves carriers with the discretion to choose to comply with CALEA by other means.  !VWe emphasize that in requiring carriers to comply with the core features of JSTD025 by June  X_4 !R30, 2000, we did not intend for the Extension Order to alter the substantive requirements of  !"CALEA. Rather, we meant only to extend the deadline for compliance. Thus, we now clarify  X34 !our Extension Order by requiring that by June 30, 2000, carriers must either have installed the  !core features of JSTD025 to take advantage of the "safe harbor" provision of section 107(a) of  !CALEA or have otherwise developed an individual solution and installed capabilities that meet  !the assistance capability requirements of Section 103. We believe that this approach is more  X 4 !'consistent with the language of the statute VZ | {O'ԍ See, e.g., Section 103(b)(1) of CALEA, 47 U.S.C.  1002(b)(1) (CALEA does not authorize any law enforcement agency to require any specific design of equipment, facilities, services, features, or system configurations).  and the legislative history on this point.W|  {O('ԍ See, e.g., H. Rep. No. 103837, 103d Cong., at 23 (1994), reprinted in 1994 U.S.C.C.A.N. 3489, 3503 ("law enforcement agencies are not permitted to require the specific design of systems or features . . . . The legislation leaves it to each carrier to decide how to comply. A carrier need not insure that each individual component of its network or system complies with requirements so long as each communication can be  {OJ'intercepted at some point that meets the legislated requirements."); id. at 27, reprinted in 1994 U.S.C.C.A.N. at 3507 ("Compliance with the industry standards is voluntary not compulsory. Carriers can adopt other solutions for complying with the capability requirements.")  In  X 4 !addition,KX  {OU'ԍ See infra at  5257.K we now propose to modify footnote 139 of the Extension Order to include the location  !pinformation feature as part of the core of JSTD025 which, if chosen by carriers as a means to qualify for the "safe harbor," must be implemented by the June 30, 2000 deadline.  Xh4  }v .47.  As detailed in the Extension Order, an extension until June 30, 2000 provides  !sufficient time for manufacturers to produce CALEA compliant equipment based on the core  !features of JSTD025 or to develop individual network solutions and provides  !telecommunications carriers sufficient time to purchase, test and install such equipment"%tX0*%%ZZ"  X4 !throughout their networks.kY {Oy'ԍ See Extension Order, supra note 13, at  48. k We further recognize that the additional "noncore" technical  !hrequirements we propose to be adopted in this rulemaking may require additional time for  !manufacturers to design and develop these capabilities and for telecommunications carriers to  !pincorporate them into their networks. Thus, we will consider establishing another deadline or an  !implementation schedule for telecommunications carriers to comply with any new technical  !}requirements we ultimately adopt in the instant proceeding. We seek comment on this proposal.  !/Specifically, we ask carriers and manufacturers to supply us with timelines that detail how they plan to develop and deploy the additional technical requirements noted herein.  X1' C.Particular Capabilities of JSTD025 Opposed by CDT      X '1. Location Information kkkkkkkkkk  X 4 }z/48.  Background. JSTD025 includes a "location" parameter that would identify the  !Ilocation of a subject's "mobile terminal" whenever this information is reasonably available at the  !Nintercept access point and its delivery to law enforcement is legally authorized. Location  !information would be available to the LEA irrespective of whether a call content channel or a  X{4call data channel was employed.{Z{Z yO'ԍ JSTD025 at  6.4.6, and at  5.4.15.4.8, Tables 1, 5, 6, and 8.{  XM4  } 049.  CDT objects to the inclusion of a location parameter in JSTD025, stating that its  !inclusion violates the balance established by the Act between law enforcement and privacy by  !umandating a location tracking capability that Congress did not intend to be included within  X4 !CALEA.<[ yO'ԍ CDT Comments, at i.< CDT asserts that location information does not fit within the definition of call X4 !identifying information,9\z {O'ԍ Id. at 29.9 and that it must be deleted from the final standard because it goes  X4 !,beyond the assistance capability requirements set forth in Section 103(a)(1)(4).<]  {O'ԍ Id. at 3334.<  !EPIC/EFF/ACLU state that CALEA excludes wireless services from any requirement to provide  X4locationtracking information to law enforcement.J^ yO!'ԍ EPIC/EFF/ACLU Comments, at 1921.J  X~4 }   150.  Most other parties, however, either disagree with this position, or justify the  !inclusion of location information in the industry interim standard as a compromise reached"g. ^0*%%ZZ"  !between industry and law enforcement. For example, SBC Communications, Inc. (SBC) claims  ! that CDT has overstated the capabilities of the JSTD025 location feature. SBC asserts that this  !feature does not convert all wireless phones into locationtracking devices, but merely provides  X4 !_the ability to identify the landline central office through which a cellular call is routed.=_ yO4'ԍ SBC Comments, at 15.= TIA  !states that while it is unclear as to whether CALEA requires location information capabilities,  !such capabilities are reasonably available to telecommunications carriers, and industry and law  !enforcement have reached a reasonable compromise on incorporating this feature into JSTD X_4 !<025.@`_X yOh 'ԍ TIA Comments, at 7678.@ AT&T voices a similar view, stating that a feature to provide location information at the  !/origination and at the termination of wireless calls was included in JSTD025 as a compromise  !+to law enforcement's original, much broader claim that CALEA required carriers to provide  !location information whenever a wireless phone registered autonomously or as it moved from cell  X 4site to cell site.>a  yO'ԍ AT&T Comments, at 13.>   X 4 }9 251.  By contrast, DoJ/FBI contend that information identifying the location of the cell  !site or other network element handling a wireless communications falls squarely within the  !statutory definition of "callidentifying information" contained in section 102(2) of CALEA,  !because it identifies the origin or destination of the call. Further, DoJ/FBI state, Section  !103(a)(2) does include location information under the category of "callidentifying information,"  !cbut also requires law enforcement to have authority beyond that "solely" applicable to the use of  !lpen registers and trap and trace devices. Finally, DoJ/FBI state that the JSTD025 location  !feature would require wireless carriers to provide only cell site information, not the specific  !location of a subject's wireless phone, and then only at the beginning and termination of the  X4call.Ebx yO/'ԍ DoJ/FBI Comments, at 1621. E  X4 }, 352.  Discussion. We tentatively conclude that location information is callidentifying  !4information under CALEA. The Act states that callidentifying information is "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  X~4 !lservice of a telecommunications carrier."Lc~ {O7"'ԍ 47 U.S.C. 1001(2). L We believe, contrary to the position of CDT and  !JEPIC/EFF/ACLU, that location information identifies the "origin" or "destination" of a communication and thus is covered by CALEA. "9c0*%%ZZ"Ԍ X4  } 453.  We also observe that in the wireline environment, irrespective of the precise nature  !of law enforcement's surveillance authorization, LEAs have been able to obtain location  !information routinely from the telephone number because the telephone number corresponds with  ![location. With the telephone number, location information is available from a LEA's own  !911/Enhanced 911 (E911) database or from the telephone company's electronic records, such as  X4the Loop Maintenance Operating System (LMOS).Bd {O'ԍ See Transmission Systems for Communications, AT&T Bell Laboratories (5th ed. 1982). We also note that the equivalent location information in the wireless (cellular or broadband PCS) environment appears to be the location of the cell sites to which the mobile terminal or handset is connected at the beginning and at the termination of the call. Provision of this particular location information does not appear to expand or diminish law enforcement's surveillance authority under prior law applicable to the wireline environment.B  X_4  }S 554.  We note, however, that the location feature as it currently appears in  JSTD025  !is unclear. In particular, we note that this feature refers to the identification of the location of  !a subject's "mobile terminal," but does not specifically state whether it is the precise location of  !_the mobile terminal or handset that is intended, or simply the location of the cell site to which  !the terminal or handset is connected. Also unstated in JSTD025 is whether continuous location  !tracking is intended to be provided, or only the location at the beginning and termination of the  !ycall. Nonetheless, we note that DoJ/FBI and industry appear now to agree that the standard  X 4covers only the location of the cell site, and only at the beginning and termination of the call.de z yO'ԍ DoJ/FBI Comments, at 16, 1920, & n.5; TIA Comments, at 77.d  X4 } 655.  In view of the above analysis, we tentatively affirm that location information  Xy4 !should be construed to mean cell site location at the beginning and termination of a call.@fy  yO4'ԍ 47 U.S.C.  1006(b).@ We  !seek comment on these proposals and, as required by section 107(b), on the other factors that we  !must consider in establishing a technical requirement or standard. We note that location  !Vinformation is already included in JSTD025, the interim standard adopted by industry, and was  !copposed solely by the privacy groups. Therefore, we request comment in particular on whether  !our proposal raises issues regarding the protection of privacy and security of communications  !which are not authorized to be intercepted. As discussed above, we propose that the June 30,  !2000 CALEA compliance deadline also is sufficient for development and implementation of  X4compliant equipment that includes this feature.Kg {O !'ԍ See supra at  4647.K  X4 } 756.  Finally, we tentatively conclude that location information is reasonably available  ! to telecommunications carriers, because this technical requirement was developed by industry and  !8is included in the interim standard. However, we request comment on how the Commission"e, g0*%%ZZ"  !pshould decide or interpret the term "reasonably available" in the context of the proposed location  !information requirement. For example, it appears that location information is already available  !through the wireless carriers' billing, handoff and system use features. Additionally, wireless  !Wcarriers will be required to have a location information capability as part of their E911  X4 !obligations.ShZ yO'ԍ Revision of the Commission's Rules To Ensure Compatibility with Enhanced 911 Emergency Calling Systems, CC Docket No. 94-102, Report and Order and Further Notice of Proposed Rulemaking, 11 FCC Rcd  {O'18676 (1996), recon. Memorandum Opinion and Order, 12 FCC Rcd 22665 (1997).S We seek comment as to whether the location information feature in these other  X4 !Econtexts can be used to address the needs of law enforcement under CALEA. We request  !comment on any other issues that may impact our determination as to whether the location information that would be required to be provided to a LEA is reasonably available to carriers.  X14 } 857.  Commenters should also note CALEA's express statement that "with regard to  !information acquired solely pursuant to the authority for pen registers and trap and trace devices  !I(as defined in section 3127 of title 18, United States Code), . . . callidentifying information shall  !not include any information that may disclose the physical location of the subscriber (except to  X 4 !Ithe extent that the location may be determined from the telephone number)."Li  yOp'ԍ 47 U.S.C.  1002(a)(2)(B).L We agree with  !EDoJ/FBI that this provision does not exclude location information from the category of "call !Iidentifying information," but simply imposes upon law enforcement an authorization requirement  X4 !Mdifferent from that minimally necessary for use of pen registers and trap and trace devices.sjz yO'ԍ We believe that interpreting this provision to exclude location information from the technical requirements for CALEA would render the provision "mere surplusage" and would thus conflict with the usual rules of  {OK'statutory construction. See Dunn v. CFTC, 519 U.S. 465 (1997), 117 S.Ct. 913, 917 (1997) ("legislative  {O'enactments should not be construed to render their provisions mere surplusage"); Illinois Public  {O'Telecommunications Ass'n v. FCC, 117 F.3d 555, 562 (D.C.Cir. 1997) (construing section 226(e)(2) of  {O'Communications Act in manner to avoid "mere surplusage"); Deployment of Wireline Services Offering Advanced  {Os'Telecommunications Capability, CC Docket No. 98147, Memorandum Opinion and Order and Notice of Proposed Rulemaking, FCC 98188, released August 7, 1998, at  71 ("when . . . 'charged with understanding the relationship between two different provisions within the same statute, we must analyze the language of each to make sense of the whole'").s We seek comment on this issue.  XK'    2.PacketMode  X4 } 958.  Background. JSTD025 provides for LEA access to callidentifying information  !and the interception of wire and electronic telecommunications, regardless of whether the"j0*%%ZZ"  X4 !telecommunications are carried in circuitmode or in packetmode.+k {Oy'ԍ See JSTD025, at  3 and 4.5. Section 3 defines circuitmode as "a communication using bidirectional paths switched or connected when the communication is established. The entire communication uses the same path." Section 3 defines packetmode as "a communication where individual packets or virtual circuits of a communication within a physical circuit are switched or routed by the accessing telecommunication system. Each packet may take a different route through the intervening network(s)."+ It further states that the  !V"callidentifying information associated with the circuitmode content surveillance is provided on  !the [call data channel]," but does not specifically address whether callidentifying information,  X4if any, associated with packetmode surveillance must be provided over a call data channel.2lz {O 'ԍ Id.2  X4 }z :59.  CDT challenges JSTD025's treatment of intercepted packets as violative of the  !+legal balance between the rights of law enforcement and the rights of individuals to privacy,  !asserting that the interim standard fails to require adequate privacy protections in packetmode  XH4 !networks.?mH  yO'ԍ CDT Comments, at iii.? Specifically, CDT asserts that JSTD025 does not require telecommunications  !carriers to excise call content information from packets before providing the packets to law  X 4 !genforcement over call data channels the interim standard merely permits the carriers to separate  !pthe information prior to delivery, at their option. CDT concludes that the interim standard would  X 4 !allow a LEA, possessing only a pen register order, to receive all of the contents of a person's  !Ncommunications without any effort by the carrier to excise the call content from the call !lidentifying information authorized for delivery to the LEA. Accordingly, CDT maintains that  !the treatment of packet transmissions in JSTD025 threatens to obliterate entirely the distinction  X4 !cbetween call content and dialed numbers or similar signaling information.<n {O'ԍ Id. at 3435.< CDT contends that  !Title III's "minimization" requirement is inadequate to protect the privacy of call content in  !3packet communications subject to a pen register order because there is no such requirement under  XQ4the pen register standard.EoQ.  yO0'ԍ CDT Reply Comments, at iii.E  X#4  }9 ;60.  EPIC/EFF/ACLU concur with CDT, stating that the FBI seeks to obtain the full  X4 !content of a subject's packetmode communications even when the government is authorized only  !}to intercept addressing or signaling information. EPIC/EFF/ACLU contend that the provision of  !call content to law enforcement in this situation would violate the minimization requirements of  !"both the Fourth Amendment and Title III, and would also violate Section 103(a)(4) of CALEA,  X4which requires the carriers to protect communications not authorized to be intercepted.Gp  yO!%'ԍ EPIC/EFF/ACLU Comments, at 24.G"N p0*%%ZZO"Ԍ X4 }~ԙ <61.  TIA disagrees with CDT and EPIC/EFF/ACLU, contending that their argument that  !JSTD025 is deficient because it permits delivery of an entire packet stream in response to a pen  !register order fails to recognize the differences between circuitmode and packetmode  !<technology. TIA states that existing technology does not permit telecommunications carriers to  !<provide separated packet headers as callidentifying information. TIA concedes, however, that  !it is unclear whether the LEA has authority to access packetmode communications under a pen  Xx4register order.@qx yO'ԍ TIA Comments, at 7880.@  XJ4  } =62.  DoJ/FBI argue that when a carrier delivers an entire packet stream to the LEA  !pursuant to a pen register authorization, the LEA is legally precluded from recording or decoding  !information other than dialing and signaling information. DoJ/FBI state that the packetmode  !<provisions of JSTD025 rely on the existence of this legal safeguard to ensure that call content  !cis not improperly accessed in pen register cases. DoJ/FBI also state that LEAs performing pen  !register surveillance in an analog environment traditionally have received access to all information  !transmitted over the subscriber's line on the local loop, including call content. Accordingly,  !DoJ/FBI contend, the packetmode provisions do not represent a diminution of traditional privacy  X4 !protection.DrX yO'ԍ DoJ/FBI Comments, at 2122.D SBC concurs, stating that law enforcement is not allowed to intercept call content  !unless authorized to do so, and that sending the LEA an entire packet stream would not represent  Xd4a change from the status quo.Dsd yO'ԍ SBC Reply Comments, at 78.D  X64 }`  >63.  Discussion.  Packet data and packet-switching technology are potentially usable  !for both information services and telecommunications services. We first observe that Section  !103(b)(2)(A) of CALEA expressly excludes "information services" from its assistance capability  X4 !requirements.Ftx yO'ԍ 47 U.S.C.  1002(b)(2)(A).F Thus, packet data and packet-switching technology is subject to these  !lrequirements only to the extent it is used to provide telecommunications services, and not for  X4 !information services.^u@ yO~'ԍ Section 102(6) of CALEA (47 U.S.C.  1001(6)) states that the term "information services" (A) means the offering of a capability for generating, acquiring, storing, transforming, processing, }!}!retrieving, utilizing, or making available information via telecommunications; and (B) includes (i) a service that permits a customer to retrieve stored information from, or file information for storage in, information storage facilities; (ii) electronic publishing; and (iii) electronic messaging services; but"$t0*%%$"Ԍ(C) does not include any capability for a telecommunications carrier's internal management, control, or operation of its telecommunications network.^ Packetmode telecommunications services are expected to grow rapidly" u0*%%ZZX"  X4 !in the near future.qv\  {O'ԍ See generally FederalState Joint Board on Universal Service, Report to Congress, CC Docket No. 9645,  {O'FCC 9867 (1998) ("Report to Congress on Universal Service") at  21106, for a discussion of distinctions between telecommunications and information service providers.q JSTD025 appears to be appropriately limited to apply only to  X4 !"telecommunications services" as defined by the Commission.wD {O'ԍ See JSTD025 at  1.1 ("This Interim Standard defines the interfaces between a telecommunication  {O 'service provider (TSP) and [a LEA]....") (emphasis added). Second, we observe that  !CALEA requires telecommunications carriers to provide information to the LEA "in a manner  !Jthat protects . . . the privacy and security of communications . . . not authorized to be  X4 !intercepted."Lx yO 'ԍ 47 U.S.C.  1002(a)(4)(A).L This mandate would seem to be violated if the carrier were to give the LEA both  !callidentifying and call content information when only the former were authorized. Under those  !}circumstances, the LEA would be receiving call content information without having the requisite authorization.  X14  }  ?64.  The record before us, however, is not sufficiently developed to support a proposal  !of any particular CALEA technical requirements for packetmode telecommunications.  !Additional analysis is needed. We are aware that packetmode technology is rapidly changing,  X 4 !and that different technologies may require differing CALEA solutions.y 0  yO'ԍ For example, JSTD025 itself lists the following as eight distinct packetmode services: Integrated Services Digital Network (ISDN) usertouser signaling; ISDN Dchannel X.25 packet services; Short Message  {O]'Services (SMS) for cellular and broadband PCS (e.g., NAMPS, TIA/EIA41, PCS1900, or GSMbased  {O''technologies); wireless packetmode data services (e.g., Cellular Digital Packet Data (CDPD), Code Division Multiple Access (CDMA), Time Division Multiple Access (TDMA), PCS1900, or GSMbased packetmode services); X.25 services; TCP/IP services; paging (oneway or twoway); and packetmode services using traffic  yO'channels. JSTD025 at  4.5.2. In addition, we note that there may be other packet technologies warranting discussion. This appears especially so, given that some carriers provide frame relay services, and various carriers have announced an intention to provide Asynchronous Transfer Mode (ATM) service. For example, Sprint has announced development of its "ION" system which will deploy ATM, SONET rings, and IP telephony to route data packets representing voice telephony. We do not believe that  !the record sufficiently addresses packet technologies and the problems that they may present for  !yCALEA purposes. While it is premature to impose any particular technical requirements for  !packetmode telecommunications at this time, it is appropriate to ask for a full range of comment on this issue.  Xb4  }` @65.  In seeking to develop a full record, we first set forth an analytical framework we  !believe will prove useful for evaluating the issue of setting CALEA technical requirements for"Ky0*%%ZZ"  !packetmode telecommunications. First, we advise commenters to consider the difference  !between connectionoriented and connectionless packetmode services, and also between  !permanent virtual circuits, which have no percall information, and switched virtual circuits.  !With these distinctions in mind, we request that commenters provide detailed comments regarding  !whether and, if so, how the statutory requirements of Section 103(a) of CALEA apply to packet !ymode telecommunications. We request comment on what constitutes the equivalent of "call !identifying information" for packetmode telecommunications services within the context of  !'CALEA. Will packetmode callidentifying information (or its equivalent) be reasonably  XH4 !available to carriers and, thus, subject to the provisions of Section 103(a)(2) of CALEA?_zH yO 'ԍ Section 103(a)(2) of CALEA, 47 U.S.C.  1002(a)(2)._ How  !could packetmode call content and callidentifying information (or its equivalent) be separated for delivery to law enforcement in compliance with CALEA?  X 4  } A66.  In addition, we seek comment on the other section 107(b) factors that we must  !_consider in establishing technical requirements. Specifically, we seek comment on any cost !3effective methods for incorporating CALEA packetmode requirements into a telecommunications  !/carrier's system, and whether or not this can be accomplished in a manner that minimizes costs  X4 !}to residential ratepayers.i{X yO'ԍ Section 107(b)(1), (3) of CALEA, 47 U.S.C.  1006(b)(1), (3).i Further, we request additional comment on whether the inclusion of  !packetmode technical requirements to meet the assistance capability requirements envisioned by  !lSection 103 raises issues regarding the protection of privacy and security of communications  XK4 !"which are not authorized to be intercepted._|K yO'ԍ Section 107(b)(2) of CALEA, 47 U.S.C.  1006(b)(2)._ Additionally, we solicit comment on whether the  !inclusion of such technical requirements would have a positive or negative effect on the provision  X4 !of new technologies and services to the public._}x yOF'ԍ Section 107(b)(4) of CALEA, 47 U.S.C.  1006(b)(4)._ Commenters are also asked to provide detailed  !information regarding the amount of time and conditions that they believe will be necessary to  !8successfully develop and deploy packetmode technical requirements in telecommunications  X4 !Vsystems._~ yO'ԍ Section 107(b)(5) of CALEA, 47 U.S.C.  1006(b)(5)._ Finally, we recognize that packetmode issues are complex, and that relative to the other issues under consideration herein, additional time may be required to resolve them.  X' "7 ~0*%%ZZ"Ԍ X'D.DoJ/FBI Punch List  X' 1. General Comments  X4  } B67. DoJ/FBI maintain that the nine FBI punch list items must be implemented if  !essential law enforcement requirements are to be met. DoJ/FBI assert that the basic goal of  !4CALEA's assistance capability requirements is to ensure that the technical ability of law  !#enforcement to carry out electronic surveillance meets, rather than falls short of, law  !enforcement's legal authority. DoJ/FBI state that each of the nine capabilities missing from J !STD025 and requested in the DoJ/FBI Petition is firmly rooted in the language, legislative  !history, and policies of CALEA, and that failure to provide these capabilities will result in serious  !#injury to the government's ability to enforce state and federal laws through electronic  X 4surveillance.F  yOe 'ԍ DoJ/FBI Reply Comments, at 4.F  X 4 } C68. Telecommunications carriers and their representatives generally oppose inclusion  !of any portion of the punch list in the final CALEA standard. The United States Telephone  !+Association (USTA) states that JSTD025 already represents a compromise on the part of  Xy4 !industry.=yX yO'ԍ USTA Comments, at 3.= AT&T argues that industry and other public commenters have made a compelling  !@case that the FBI punch list of capabilities is not required by CALEA, whereas DoJ/FBI has made  !0only a showing of how beneficial the capabilities would be to future law enforcement  X44 !psurveillance.=4 yO'ԍ AT&T Comments, at 2.= AT&T contends that the industry interim standard uses the precise definition of  !callidentifying information set forth in CALEA, but that DoJ/FBI ask the Commission to go well  !beyond this definition by including as "callidentifying" information: subjectinitiated dialing and  !signaling; party hold, drop, and join messages; and notification messages of networkgenerated  X4 !_inband and outofband signaling.8x {O'ԍ Id. at 7.8 AT&T further argues that DoJ/FBI has not addressed  X4 !/section 107 of CALEA, which requires costeffective implementation of the statute.C  yO|'ԍ AT&T Reply Comments, at 3.C AT&T  !contends that the DoJ/FBI punch list is really an attempt to force telecommunications carriers to  X4provide additional capabilities without reimbursement from law enforcement.= yO"'ԍ AT&T Comments, at 5.= "|!* 0*%%ZZ0"Ԍ X4 } D69. BellSouth and CDT concur with AT&T's assessment regarding callidentifying  !information. BellSouth states that CALEA defines callidentifying information narrowly as the  !numbers identifying the calling and called parties, and not other carrier network messages, tones,  X4 !signals, or information.B yO4'ԍ BellSouth Comments, at 7.B CDT contends that DoJ/FBI is attempting to use CALEA to include  !more data in the category of callidentifying information to ensure that such data can be available  !under the less stringent legal standards applicable for the LEA to obtain pen register and trap and  Xv4trace authority than is required under Title III for the LEA to obtain call content information.FvX yO 'ԍ CDT Reply Comments, at 1112.F  XH4 }9 E70.  Other parties concur with AT&T regarding costeffective implementation of the  !punch list. AirTouch Communications, Inc. (AirTouch), for example, states that a vendor has  !Iadvised AirTouch that developing the punch list would require an effort exceeding by 160% the  !substantial effort required to develop the industry standard. AirTouch therefore maintains that  !limplementation of the punch list would be costly and would divert resources from developing  X 4 !new technologies and services.A  yOn'ԍ AirTouch Comments, at 9.A Sprint Spectrum L.P. d/b/a Sprint PCS (Sprint PCS) contends  !8that implementation of the punch list will almost certainly exceed the $500 million authorized  X 4 !by Congress for implementation of CALEA.C x yO'ԍ Sprint PCS Comments, at 6.C US West, Inc. (US West) states that rate increases  !will likely be necessary if telecommunications carriers are required to implement any of the  Xy4additional capabilities proposed by DoJ/FBI.@y yO2'ԍ US West Comments, at 9.@  XK4 }i F71. Bell Emergis Intelligent Signalling Technologies (Bell Emergis), on the other  !hand, states that the entire punch list can be adopted as an Addendum to JSTD025. Bell  !+Emergis contends that while there may be cost and technical difficulties in incorporating the  !punch list within a switchbased approach, networkbased solutions such as one it has  X4developed meet the test of both cost effectiveness and technical achievability.M yO8'ԍ Bell Emergis Reply Comments, at 23.M  X4 } G72.  DoJ/FBI disagree with commenters who reject the punch list, stating that these  !commenters have a fundamental misunderstanding of the policies and goals of CALEA. DoJ/FBI  !contend that Section 103 imposes mandatory assistance capability obligations that must be met  !&by all telecommunications carriers, and assert that commenters who suggest that law enforcement  !lconcerns are of no more than secondary importance in the CALEA legislation are incorrect. "e"( 0*%%ZZ'"  !DoJ/FBI conclude that if the Commission does not implement the punch list in its entirety,  !Iindustrypromulgated standards will effectively replace the underlying statutory requirements of  X4Section 103.G yOK'ԍ DoJ/FBI Reply Comments, at 12.G Below we discuss each punch list item in detail.  X' 2. Content of subject-initiated conference calls  Xv4  } H73. Background. This capability would permit the LEA to monitor the content of  !'conversations connected via a conference call set up by the facilities under surveillance.  !Surveillance of all portions of a conference call would continue, even if any party to the call  !utilized services such as hold, call waiting, or threeway calling. For example, if anyone involved  !in a conference call were placed on hold, all remaining conversations would continue to be  !uavailable to the LEA for monitoring. The ability to monitor would continue even after the subject drops off the conference call.  X 4  }\ I74. AirTouch states that there is no basis to impose an enhanced conference call  X 4 !}requirement on carriers.G X yO'ԍ AirTouch Reply Comments, at 6.G AirTouch also states that it would appear to be easy for criminals to  !+bypass this feature if carriers were to deploy it because it would enable law enforcement to  !Iintercept only those conference calls that use the facilities under surveillance and are supported  !yby a conference service provided by the subject's local carrier. AirTouch maintains that law  !enforcement would not be able to intercept conference calls when the subject no longer  !participates if the call is setup by another person using another telephone or if the subject  !initiates the call, but uses a conference bridge service offered by another carrier or service  X4provider.B yO'ԍ AirTouch Comments, at 14.B  X4 }J J75.  TIA argues that CALEA does not require delivery of conference call conversations  !that cannot be heard over a subscriber's facilities, but only communications that are to or from  !a subscriber. TIA states that implementation of this punch list item would result in an effectively  !unlimited, and unwarranted, expansion of the "facilities" doctrine of Title III. TIA states that,  !despite the fact that the DoJ/FBI Petition acknowledges that "facilities" have historically been  !considered for Title III purposes as the subscriber's "terminal equipment," DoJ/FBI now interpret  !Title III as including not just the subscriber's facilities, but services as well. Furthermore, in  !'TIA's view, implementation of this feature would violate the limits on wiretaps and other  !searches imposed by the Fourth Amendment. TIA argues that eliminating the required link to  !the subscriber's facilities would take an interception far afield from the particular persons and" #x0*%%ZZ"  !places with regard to which law enforcement has established "probable cause" warranting the  X4electronic surveillance.@ yOb'ԍ TIA Comments, at 3038.@  X4 }( K76.  DoJ/FBI disagree with the above commenters, arguing that Title III does not  !require the target of the investigation to be on the line in order for law enforcement lawfully to  !"intercept communications taking place over the facilities under surveillance or supported by the  Xv4 !subscriber's service.@vX yO 'ԍ DoJ/FBI Comments, at 7.@ DoJ/FBI state that it is the subscriber who pays for call conferencing  !capability and any charges associated with the duration of the call itself, demonstrating that the  XH4 !psubscriber's services are involved even if the subscriber drops off the call.GH yO 'ԍ DoJ/FBI Reply Comments, at 18.G DoJ/FBI maintain  !that Title III does not confine the LEA to communications in which the individual under  !investigation who may or may not be the subscriber is taking part. DoJ/FBI acknowledge  !that the LEA is obligated to minimize the interception of communications not otherwise subject  !lto interception under Title III, but contend that this minimization obligation does not foreclose  !the LEA from intercepting communications that involve other criminal activity merely because  !Ethey do not involve the target of a particular investigation. DoJ/FBI conclude by stating that  !where a conference call continues to be carried by the subscriber's facilities and supported by the  !subscriber's services even when the subscriber is not on the line, the communications of all  Xy4parties to such a call are covered by Section 103(a)(1) of CALEA.Byx yO'ԍ DoJ/FBI Comments, at 78.B  XK4  } L77.   Discussion. We tentatively conclude that the provision of the content of subject !initiated conference calls is a technical requirement that meets the assistance capability  X4 !_requirements of Section 103.@ yO'ԍ 47 U.S.C.  1006(b).@ With appropriate lawful authorization, the LEA is entitled to  !}"intercept, to the exclusion of any other communications, all wire and electronic communications  !carried by the carrier within a service area to or from equipment, facilities, or services of a  X4 !subscriber."J yO# 'ԍ 47 U.S.C.  1002(a)(1). J  TIA asserts that we must first determine whether a conference call capability  !<would unduly expand Title III's concept of "facilities" before deciding whether such a capability  X4 !is required under CALEA.Z(  yO#'ԍ According to TIA, the term "facilities" under Title III is "limited by the requirement that the intercept involve the actual telephone or other physical facilities of the intercept subject as opposed to the entire system  {O%'or network to which the telephones are attached." TIA Comments, at 3435; but see DoJ/FBI Joint Petition, at"%0*%%%%" 2733 ("Title III does not require the subscriber to be "on the line" in order for law enforcement lawfully to intercept communications taking place over the subscriber's facilities or supported by the subscriber's service.")  We note, however, that the plain language of CALEA's Section"$ 0*%%ZZv"  !R103 includes the terms "equipment" and "services", in addition to "facilities." Also, according  !to the legislative history, "conference calling" is one of the "features and services" that is covered  X4 !3by CALEA.^Z  {O'ԍ See H.R. Rep. No. 103827, reprinted in 1994 U.S.C.C.A.N. 3489 (1994)(one of the purposes of the Act "is to preserve the government's ability, pursuant to court order or other lawful authorization, to intercept communications involving ... services and features such as ... conference calling.").^ We seek comment on our tentative conclusion. We also seek comment as to how  !<the Commission should define or interpret Section 103's use of the phrase "equipment, facilities, or services" in the context of subscriberinitiated conference calls.  Xv4 } M78.  We recognize that different carriers provide conference calling features in various  !ways and that not all carriers' system architecture is the same. Some carriers, for example, may  !have systems that support continuation of conference calls after the subscriber drops off the call,  !while others may not. For those network configurations in which, when a subscriber drops off  !a conference call, the call nevertheless remains routed through the subscriber's "equipment,  !lfacilities, or services," we tentatively interpret CALEA as requiring the carrier to continue to  !_provide to the LEA the call content of the remaining parties, pursuant to court order or other  !lawful authorization. For those configurations, however, in which, when the subscriber drops off  !the call, the call is either disconnected or rerouted, and the "equipment, facilities, or services of  !a subscriber" are no longer used to maintain the conference call, we tentatively conclude that  !hCALEA does not require the carrier to provide the LEA access to the call content of the  !remaining parties. Moreover, in some cases where the call is rerouted, the content of the call  !may no longer be classifiable as "communications carried by the carrier within a service area"  XK4 !<pursuant to Sections 103(a)(1) and (d).LKB yO>'ԍ Section 103(a)(1) and (d) of CALEA, 47 U.S.C.  1002(a)(1) and (d). Section 103(a)(1) requires a carrier to "ensure that its equipment, facilities, or services . . . are capable of . . . expeditiously isolating and  {O'enabling [lawful interception of] all wire and electronic communications carried by the carrier within a service  {O'area to or from [subscribers]. . ." (italics added). Section 103(d) requires that when a commercial mobile service  {Ob'carrier conducting a lawful interception of wire and electronic communications loses "access to the content of  {O,'such communications or callidentifying information within the service area . . ., information is made available  {O'to the government . . . identifying the provider of a wire or electronic communication service that has acquired  {O'access to the communications" (italics added). Thus, under such circumstances, CALEA would not  !require the carrier to modify its system architecture in order to support this particular technical  !crequirement. We seek comment on this tentative conclusion. Commenters should address how  !Sections 103(a)(1) and (d) should be interpreted in this context. Also, we tentatively conclude  !that CALEA does not extend to conversations between a participant of the conference call other  X4 !than the subject and any person with whom the participant speaks on an alternative line (e.g.,  !when A, the subject, is on a conference call with B and C, we tentatively conclude that C's"%V 0*%%ZZ"  !Iconversation with D on call waiting is beyond CALEA's requirements. We also seek comment on this tentative conclusion.  X4  X4  }0 N79.  Additionally, we seek comment on the section 107(b) factors that we must consider  !'in establishing a technical requirement or standard. Are there costeffective methods of  !incorporating access to conference call content into a telecommunications carrier's system? Can  !it be accomplished in a manner that minimizes costs to residential ratepayers? Further, we  !<request comment on whether this proposal raises issues regarding the protection of privacy and  !security of communications which are not authorized to be intercepted. Additionally, we solicit  !"comment on whether the inclusion of this technical requirement within the assistance capability  !lrequirements envisioned by Section 103 would positively or negatively affect the provision of  !new technologies and services to the public. Would, for example, networks have to be redesigned  !Min such a way as to preclude certain new technologies or services? Finally, commenters are asked  !}to provide detailed information regarding the amount of time and conditions that they believe will  !be necessary to successfully develop and deploy this technical requirement in telecommunications  X 4systems.  Xy'3. Party hold, join, drop on conference callsLL  XK4  } O80.  Background. This item also involves features designed to aid a LEA in the  !Ninterception of conference calls. This feature would permit the LEA to receive from the  !"telecommunications carrier messages identifying the parties to a conversation at all times. The  !party hold message would be provided whenever one or more parties are placed on hold. The  !party join message would report the addition of a party to an active call or the reactivation of a  !held call. The party drop message would report when any party to a call is released or disconnects and the call continues with two or more other parties.  X4  } P81.  AT&T states that DoJ/FBI admit that they have not received party hold, drop, and  !join messages in the past, but DoJ/FBI claim this information is now needed so that law  !}enforcement can demonstrate that a party hears material portions of a communications. AT&T  !contends, however, that these messages will not indicate to law enforcement whether a party hears  !or does not hear any communication because the party may or may not be listening at relevant  !Rtimes. AT&T further contends that its review of all wiretapping cases discloses no decision  !where such information was an issue in any decided case. AT&T maintains that JSTD025  !already provides law enforcement with all numbers dialed or received from any participant to  !cmultiparty calls; change messages whenever callidentities are merged, split, or changed; and a  !message identifying when the resources for all legs of a call are released. AT&T concludes,  X!4therefore, that addition of the instant punch list item is unnecessary to identify the call.A! yO($'ԍ AT&T Comments, at 1011.A ""&X0*%%ZZ!"Ԍ X4 } Q82.  BellSouth states that the callidentifying information intended by CALEA to be  !'provided to law enforcement is simply the telephone number indicating call origination or  !destination. BellSouth argues that the additional information sought by law enforcement, such  !as which parties are on a call, do not constitute origination or destination telephone numbers, and  !therefore cannot be categorized as "callidentifying information." Moreover, BellSouth argues,  !party hold, drop, and join message information would be extremely difficult to provide because,  !in all but the simplest cases, conference calls are established in a remote bridge, separate from  X_4the voice switch.B_ yO'ԍ BellSouth Comments, at 9.B  X14 }1 R83.  TIA states that the industry interim standard already requires provision of  !information that substantially satisfies the party join/drop capabilities requested by DoJ/FBI.  !Thus, TIA maintains, law enforcement's primary dispute regarding this issue is that JSTD025  !does not require a realtime message to be delivered to law enforcement whenever a participant  !Nis placed on hold or released from hold by the subject. However, TIA argues, party hold  !information is not callidentifying information nor is it reasonably available to the carrier. TIA  !yalso states that a party who is not on hold may stop listening or walk away from the phone  !&thus, the DoJ/FBI rationale for adding this feature, that "without these messages, law enforcement  !would not know who joins or leaves a conference call, whether the subject alternated between  !ycalls, or which parties heard or said parts of the conversation," is unpersuasive. Rather, TIA  !3states, the only persuasive evidence that a party heard an intercepted statement is a demonstration  X44that the party responded to the statement.@4X yO='ԍ TIA Comments, at 5155.@  X4 }5 S84.  DoJ/FBI disagree with the above parties, contending that party hold/join/drop  !messages constitute callidentifying information. DoJ/FBI contend that carriers are obligated  !under Section 103(a)(1) to provide this information, regardless of whether the LEA could have  !hacquired it through traditional monitoring techniques in the past. DoJ/FBI state that party  !hold/join/drop messages enable the LEA to identify who is connected in a subject's conference  !call at any point in the conference. Without these messages, according to DoJ/FBI, the LEA  !would not know who joins or leaves a conference call, whether the subject alternated between  !"calls, or which parties heard or said particular parts of a conversation. Therefore, according to  !DoJ/FBI, this information must be added to the industry standard to ensure that the assistance  X74capability requirements of Section 103(a) of CALEA are met as intended by Congress.J7 yO!'ԍ DoJ/FBI Reply Comments, at 5054.J  X 4  X 4 } T85.  Discussion. We tentatively conclude that party hold/join/drop information falls  !within CALEA's definition of "callidentifying information" because it is "signaling information"'x0*%%ZZ"  X4 !that identifies the origin, direction, destination, or termination of each communication generated  X4 !Ior received" by the subject.f {Ob'ԍ Section 102(2) of CALEA, 47 U.S.C.  1001(2). f For example, party join information appears to identify the origin  !of a communication; party drop, the termination of a communication; and party hold, the  !temporary origin, temporary termination, or redirection of a communication. This capability also  !yappears to be necessary to enable the LEA to isolate callidentifying and content information  !because, without it, the LEA would be unable to determine who is talking to whom, and, more  Xv4 !accurately, to focus on the subject's role in the conversation.vZ yO 'ԍ We note that Section 103 specifically requires a telecommunications carrier to: (a) ensure that its equipment, facilities, or services that provide a customer or subscriber with the ability to originate, terminate, or direct communications are capable of (2) expeditiously isolating and enabling the government, pursuant to a court order or other lawful authorization, to access callidentifying information that is reasonably available to the carrier  (B) in a manner that allows it to be associated with the communication to which it pertains. Further, by isolating the call !identifying information in this manner, the LEA can ascertain and isolate third parties who are  !Nnot privy to the communications involving the subject, thereby furthering the minimization concept.  X 4 } U86.  Accordingly, we propose that provision of party hold/join/drop information, if  !reasonably available to the carrier, is a technical requirement that meets the assistance capability  ![requirements of Section 103. We base this conclusion on the statutory language found in  !Sections 103(a)(2) and 102(2). We note, however, that LEA access to this information would  !Ibe required only in those cases where the carrier's facilities, equipment or services are involved  !Iin providing the service; in other words, when a network signal is generated. To the extent that  !@customer premises equipment (CPE) is used to provide such features, we tentatively conclude that  !Eparty hold/join/drop information could not be reasonably made available to the LEA since no  !network signal would be generated. For example, many telephone sets have a "hold" button that  !ddoes not signal the network thus, from the carrier's point of view, the call's status is  !unchanged. We seek comment on this tentative conclusion. We also seek comment on TIA's  !assertion that party/hold/join drop information is already substantially available to the LEA and, if so, whether it is or needs to be provided in real time.  X4  } V87.  We seek comment on our proposal and, as required by section 107(b), on the other  ! factors that we must consider in establishing a technical requirement or standard. Are there cost !effective methods of incorporating a party hold/join/drop capability into a telecommunications  !4carrier's system? Can it be accomplished in a manner that minimizes costs to residential  !/ratepayers? Further, we request comment on whether this proposal raises issues regarding the  !protection of privacy and security of communications which are not authorized to be intercepted.  !Additionally, we solicit comment on whether the inclusion of this technical requirement within  !the assistance capability requirements envisioned by Section 103 would positively or negatively" (0*%%ZZ"  !affect the provision of new technologies and services to the public. Further, commenters are  !asked to provide detailed information regarding the amount of time and conditions that they  !hbelieve will be necessary to successfully develop and deploy this technical requirement in telecommunications systems.  X'  X'4. Subject-initiated dialing and signaling informationbb  Xv4  X_4  }J W88.  Background. This capability would permit the LEA to be informed when a subject  !using the facilities under surveillance uses services such as call forwarding, call waiting, call hold,  X34 !and threeway calling. DoJ/FBI requests this information for each communication initiated by  !the subject. This capability would require the telecommunications carrier to deliver a message to  !the LEA, informing the LEA that the subject has invoked a feature which would place a party on hold, transfer a call, forward a call, or add/remove a party to a call.  X 4  } X89.  USTA and US West state that such dialing and signaling activity goes beyond the  X 4 !definition of callidentifying information set forth in CALEA.V  yO"'ԍ USTA Comments, at 5; US West Comments, at 15.V TIA concurs, contending that  X4 !DoJ/FBI offer no evidence that failure to provide information on   all  such signaling activity will  !Vimpair the ability of law enforcement to determine the destination of communications. TIA also  !contends that the DoJ/FBI petition does not identify any specific signaling activity that is both  XO4 ![required by CALEA and is not already required to be provided under the industry interim  !cstandard, provided it is reasonably available. TIA states that the only additional information that  !would be available under the DoJ/FBI request is the identity of the actual keys pressed by the  !usubject, but argues that this information is not required by CALEA, as it is not reasonably  X4available and not built into the network.@X yO'ԍ TIA Comments, at 4751.@  X4 } Y90.  DoJ/FBI disagree with the above parties, contending that such dialing and signaling  !activity is callidentifying information. Further, DoJ/FBI maintain that in the past the LEA was  !pable to detect flash hook signaling by changes to the electric signals on the analog local loop, but  !+that digital switching now prevents the LEA from having this capability. DoJ/FBI state that  !without access to such dialing and signaling activity the LEA may be unable to determine what  !has happened to a call when the direction, or the destination, of the call dramatically changes.  !For example, according to DoJ/FBI, a subject may use his/her flash hook capability to move back  !+and forth between two associates on concurrent calls, and without the receipt of a message  !/showing this signaling activity, the LEA may be unable to follow the course of the conversation  X4or determine to whom the subject is speaking at any given point.J yO$'ԍ DoJ/FBI Reply Comments, at 4650.J")x0*%%ZZ"Ԍ X4 }ԙ Z91.  Discussion. We tentatively conclude that subject-initiated dialing and signaling  !information fits within the definition of callidentifying information contained in section 102(2)  !of CALEA. For example, callforwarding signaling information identifies the direction and  !destination of a call, and callwaiting signaling information identifies the origin and termination  !of each communication. We request comment on whether remote operation of these features  !should affect our tentative conclusion. For example, a subject may be able to change some aspects of his/her service from a pay telephone, as well as from the subject's telephone.  XJ4 }, [92.  We also tentatively conclude that access to subject-initiated dialing and signaling  !information may be necessary in order for the LEA to isolate and correlate callidentifying and  !Rcall content information. Knowing what features a subject is using will ensure that the LEA  !receives information "in a manner that allows it to be associated with the communication to  X 4 !which it pertains."k  yOg 'ԍ Section 103(a)(2)(B) of CALEA, 47 U.S.C.  1002(a)(2)(B).k For example, without knowing that a subject has switched over to a call  !on call-waiting, the LEA may not be able to associate the call-identifying information with the  !call content to which it pertains and thus could be more likely to mistake one call for another.  !Once again, to the extent CPE is used to perform any of the functions described here, and no  !network signal is generated, that information will not be reasonably available to a carrier, and  X{4thus, should not be required to be provided.{X {O'ԍ See supra  86; see also Sections 103(a)(2) and 103 (b)(1)(A) of CALEA, 47 U.S.C.  1002(a)(2) and 1002(b)(1)(A).  XM4  } \93.  We observe that signaling data indicating that the subject is accessing his/her voice  !mail is properly classified as "callidentifying information." The contents of the voice mail,  !however, fall outside the scope of CALEA. This is because voice mail "permits a customer to  X4 !retrieve stored information from . . . information storage facilities,"X01Í ÍX01Í Í yOk'#X\  P6G;P##X\  P6G;P##X\  P6G;P#э Section 102(6)(B)(i) of CALEA, 47 U.S.C.  1001(6)(B)(i). and CALEA does not apply  X4 !Vto information services.X  B yO'#X\  P6G;P##X\  P6G;P#э See H.R. Rep. No. 103-827, reprinted in 1994 U.S.C.C.A.N. 3489, 3503 (1994) (noting that CALEA's capability requirements do not apply to information services and stating that "storage of a message in a voice mail or E-mail 'box' is not covered by the bill. The redirection of the voice mail message to the 'box' and the transmission of an E-mail message to an enhanced service provider that maintains the E-mail service are covered.") Section 103(b)(2)(A) of CALEA, 47 U.S.C.  1002(b)(2)(A). We have recently, in the context of  {O 'the Telecommunications Act of 1996, drawn such a distinction between voice mail and other call features. See, e.g., In the Matter of Implementation of the Telecommunications Act of 1996: Telecommunications Carriers' Use  {O^"'of Customer Proprietary Network Information and Other Customer Information,  7374, 13 FCC Rcd 8061 (1998) (observing that services formerly referred to as "adjuncttobasic" "speed dialing, call forwarding, computerprovided directory assistance, call monitoring, caller ID, call tracing, call blocking, call return, repeat  {O$'dialing, call tracking, and certain centrex features" and "call waiting" were not information services, while"$0*%%$" "call answering, voice mail or messaging, voice storage and retrieval services, fax store and forward, and Internet  {OX'access services" were information services); see also NPRM, In the Matter of Implementation of 255 of the  {O"'Telecommunications Act of 1996,  39, 1998 W 185139 (released April 20, 1998) (drawing the same distinction).  {O'In our recent Report to Congress on Universal Service, we found that Congress intended the categories of  {O'"telecommunications service" and "information service" to be mutually exclusive. See FCC 9867, supra note 118, at  13. We find these precedents applicable here because CALEA and the Communications Act of 1934 (as amended by the Telecommunications Act of 1996) define the term "information services" virtually identically.  {O'Compare section 102(6)(A),(C) of CALEA, 47 U.S.C.  1001(6)(A),(C) with section 3(20) of Communication Act, 47 U.S.C.  153(20). Furthermore, CALEA explicitly includes as an example of information services "a service that permits a customer to retrieve stored information from, or file information for storage in, information storage facilities." Section 102(6)(B) of CALEA, 47 U.S.C.  1001(6)(B) (also including "electronic publishing" and "electronic messaging services" as information services). X The requirement we propose below is consistent with this distinction"* 0*%%ZZw"  !Ebecause it provides only the call identifying information and is not capable of providing voice content.  X4 } ]94.  Accordingly, we propose to include information on subjectinitiated dialing and  !psignaling that is reasonably available to the carrier as a technical requirement necessary to meet  !hthe assistance capability requirements of Section 103. We base our conclusion regarding  !lsubject-initiated dialing and signaling information that is reasonably available to the carrier on  !the statutory language found in Sections 103(a)(2) and 102(2). We seek comment on this  !hproposal and, as required by section 107(b), on the other factors that we must consider in  !establishing a technical requirement or standard. Are there costeffective methods of providing  X 4 ! subject-initiated dialing and signaling information? Can this requirement be accomplished in a  !manner that minimizes costs to residential ratepayers? Further, we request comment on whether  !this proposal or tentative conclusion raises issues regarding the protection of privacy and security  !}of communications which are not authorized to be intercepted. Additionally, we solicit comment  !0on whether the inclusion of this technical requirement within the assistance capability  !lrequirements envisioned by Section 103 would positively or negatively affect the provision of  !new technologies and services to the public. Commenters are asked to provide detailed  !information regarding the amount of time and conditions that they believe will be necessary to  !successfully develop and deploy this technical requirement in telecommunications systems. In  !addition, excluding those CPEcontrolled features noted above, we request comment on whether  !information required to provide LEAs with subjectinitiated dialing and signaling activity is  !reasonably available to carriers. Finally, we recognize that some commenters assert that at least  !portions of this technical requirement may be provided through other features of JSTD025. We  !request comment on the accuracy of these contentions. Commenters should demonstrate clearly  X4how the features required are provided, or not provided, elsewhere in JSTD025. "+ 0*%%ZZ"Ԍ X4  5. In-band and out-of-band signaling   X4 }d ^95.  Background. This technical requirement would allow a telecommunications carrier  !to send a notification message to the LEA when any network message (ringing, busy, call waiting  X4 !signal, message light, etc.) is sent to a subject using facilities under surveillance. For example,  !if someone leaves a voice mail message on the subject's phone, the notification to the LEA would  !"indicate the type of message notification sent to the subject (such as the phone's message light,  Xc4 !audio signal, text message, etc.). For calls the subject   originates, a notification message would  !_also indicate whether the subject ended a call when the line was ringing, busy (a busy line or busy trunk), or before the network could complete the call.  X 4  }9 _96.  BellSouth states that, for telecommunications carriers to be able to signal a LEA  !whenever a subject's service sends a network message to the subject or an associate, significant  !8technical upgrades to the carriers' facilities would be needed, and even then the LEA would  X 4 !receive mostly redundant information.m  yO='#X\  P6G;P#э BellSouth Comments, at 1112.m PrimeCo Personal Communications, L.P. (PrimeCo)  !Iconcurs and argues that this information is already readily available through the audio portion of  !a call content intercept and, therefore, to procure this information, the LEA should be required  !to obtain a Title III authorization. PrimeCo contends that Congress did not intend to "require the  !specific design of systems or features" that would be required to implement this capability as a  XQ4"callidentifying" technical requirement.kQX yOZ'#X\  P6G;P#э PrimeCo Comments, at 1617.k  X#4 } `97.  TIA states that DoJ/FBI define networkgenerated inband and outofband  !signaling information to include any alerting of incoming calls or messages, audible indications  !of incoming calls or messages, visual indications of incoming calls or messages, and  !palphanumeric display information. TIA contends that, to the extent JSTD025 does not already  !provide this information, the information is not "callidentifying" and is not required by CALEA  X4to be provided on a call data channel.g yOI'#X\  P6G;P#э TIA Comments, at 5557.g  X4 } a98.  DoJ/FBI contend that inband and outofband signaling identifies the "direction,  !Idestination, and/or termination" of a communication, and therefore is callidentifying information  !that must be provided under CALEA. DoJ/FBI believe that the interim standard is deficient with  !respect to this capability because it does not allow the LEA to ascertain what a subject hears and"=,x0*%%ZZy"  !sees when a call is not completed. DoJ/FBI assert that the capability they are requesting is  X4appropriately limited in scope because it relates only to signaling from the subscriber's service.q yOb'#X\  P6G;P#э DoJ/FBI Reply Comments, at 5559.q  X'  X4 }b99.  Discussion.  We believe that certain types of inband and outofband signaling  !information, such as notification that a voice mail message has been received by a subject,  !3constitute callidentifying information under CALEA. Nevertheless, there may also be other types  !of inband and outofband signaling information that would constitute call content information  !and thus would raise questions as to under what authority they should be provided to the LEA.  !However, for purposes of this proceeding, we do not address such questions of whether or what  !Rtype of authorization LEAs would need to access such information. This is up to the judicial  !branch. Unless necessary to establish technical standards under CALEAs safe harbor, it is not  !our intention to specifically decide whether certain types of inband or outofband signaling is  !either call content or callidentifying information since CALEA requires that carriers have the  X 4 !ability to provide access to both. W e request comment on what types of inband and outofband  !signaling should constitute a technical requirement necessary to meet the assistance capability  X 4requirements envisioned by Section 103. X yO'#&a\  P6G; &P## X\  P6G;P#э 47 U.S.C.  1006(b).  X{4 }  c100.  Also, in the event that we ultimately determine that inband and outofband  !Msignaling is a technical requirement necessary to meet the assistance capability requirements under  !/Section 103, we request comment on whether there are costeffective methods of providing in !band and outofband signaling to a LEA. Can this requirement be accomplished in a manner  !that minimizes costs to residential ratepayers? Further, we request comment on whether this  !requirement raises issues regarding the protection of privacy and security of communications  !_which are not authorized to be intercepted. Additionally, we solicit comment on whether the  !inclusion of this technical requirement within the assistance capability requirements envisioned  !by Section 103 would positively or negatively affect the provision of new technologies and  !services to the public. Commenters are asked to provide detailed information regarding the  !amount of time and conditions that they believe will be necessary to successfully develop and deploy this technical requirement in telecommunications systems.  Xg4  XP4  6. Timing information  X"4  } d101.  Background. In those cases where the LEA has obtained authorization to intercept  !both content and callidentifying information, this capability would require that a  !telecommunications carrier send call timing information to the LEA so that the LEA could  !associate the callidentifying information with the actual content of the call. There would be two elements to this capability: " -0*%%ZZ"Ԍ `ԙX1) Each callidentifying message (answer message, party join message, party drop  X4 message, etc.) would be time stamped within a specific amount of time from when  X4 the event triggering the message occurred in the intercept access point. yOM'#X\  P6G;P#э The intercept access point is the point in the system where the subscriber's phone line is tapped, usually at the switch. This  timestamp would allow the LEA to associate the message to the call content  X4information (i.e., the conversation).   X2) A carrier would be required to send the message to the LEA within a defined  amount of time from the event to permit the LEA to associate the number dialed to the conversation.   X 4 }m e102.  TIA states that these timing requirements are inconsistent with the capabilities of  X 4 !cexisting telecommunications networks and lack any basis in CALEA.d  yO'#X\  P6G;P#э TIA Comments, at 63.d US West concurs, and  X 4 !states that implementation of these capabilities would be quite expensive._  yOQ'#X\  P6G;P#э US West, at 22._ PrimeCo states that  !carriers vary considerably in size and technical resources, and therefore adoption of a uniform  X 4 !ytiming standard is not appropriate.h @ yO'#X\  P6G;P#э PrimeCo Comments, at 18.h BellSouth contends that establishing an arbitrary timing  !requirement, without a thorough knowledge of how CALEA will be implemented, is  X4 !uinappropriate.j yO'#X\  P6G;P#э BellSouth Comments, at 13.j SBC states that the timing of delivery of callidentifying information is a  !function of network and equipment design, and that DoJ/FBI cannot point to an actual case in  !Rwhich the timing of a carrier's delivery of callidentifying information has ever led to a crime  XO4that otherwise would have been prevented.dO`  yO`'#X\  P6G;P#э SBC Comments, at 12.d  X!4 } f103.  DoJ/FBI disagree with the above parties, arguing that a timing capability is  !yessential to law enforcement. DoJ/FBI cite a kidnapping as an example of a situation where  X4 !ptimely delivery of callidentifying information is critical.q  yO!'#X\  P6G;P#э DoJ/FBI Reply Comments, at 5966.q DoJ/FBI state that in such a situation  !Eif callidentifying information is not provided until the end of a call, it may be of little value to  !the LEA. DoJ/FBI state that it has requested transmission to the LEA from the carrier within". 0*%%ZZ"  !Zthree seconds from the time of the event because that timeframe is well within the stateoftheart,  X4and use of a precise time stamp is important to accurately record events.` {Ob'#X\  P6G;P#э Id. at 62.`  X4 }, g104.   Discussion.  We tentatively conclude that time stamp information fits within the  X4 !definition of callidentifying information contained within section 102(2) of CALEAZ yO'#X\  P6G;P#э Section 102(2) of CALEA,47 U.S.C.  1001(2). and will  X4 !allow such information "to be associated with the communication to which it pertains."i {O* '#X\  P6G;P#э See supra note 160.i We  !lpropose to include timing information that is reasonably available to the carrier as a technical  !3requirement necessary to meet the assistance capability requirements of Section 103(a). We seek  !comment on this proposal. We base this conclusion on the statutory language found in Section  !}103(a)(2), and on our tentative conclusion that such information falls within the definition of call !identifying information in section 102(2). A time stamp permits identification of a given call  ![from a series of calls made within a short timeframe, and is necessary to allow a LEA to  !8associate callidentifying information with the communication to which it pertains. We note,  !@however, that CALEA does not impose a specific timing requirement on carriers. Rather, it states  !that carriers must "expeditiously" isolate and enable the government to access callidentifying  ! information "before, during, or immediately after the transmission of a wire or electronic  !communication (or at such later time as may be acceptable to the government); and in a manner  X{4 !that allows it to be associated with the communication to which it pertains."{| yO'#X\  P6G;P#э Section 103(a)(2) of CALEA, 47 U.S.C.  1002(a)(2). T herefore, we  !cseek comment on what is a reasonable amount of time to require the carriers to deliver the time  !}stamped message to the LEA. We note that DoJ/FBI have requested delivery within 3 seconds  !lof the beginning of the event and with an accuracy of 100 milliseconds. Commenters should  !address whether this is a reasonable time frame, and whether there are any technical barriers to  !cimplementing such a requirement. Commenters proposing an alternative time frame should also  !address technical feasibility and how such a time frame will satisfy the requirements of the statute.  X4  } h105.  In addition, we seek comment, as required by section 107(b), on the factors that  !we must consider in establishing a technical requirement. Are there costeffective methods of  !Vproviding timing information to a LEA? Can this requirement be accomplished in a manner that  !minimizes costs to residential ratepayers? Further, we request comment on whether this proposal  !raises issues regarding the protection of privacy and security of communications which are not  !authorized to be intercepted. Additionally, we solicit comment on whether the inclusion of this  !technical requirement within the assistance capability requirements envisioned by Section 103""/ 0*%%ZZV"  !would positively or negatively affect the provision of new technologies and services to the public.  !'Commenters are asked to provide detailed information regarding the amount of time and  !conditions that they believe will be necessary to successfully develop and deploy this technical requirement in telecommunications systems.  X' 7. Surveillance status  X_4 }0i106.  Background. This capability would require the telecommunications carrier to send  !information to the LEA to verify that a wiretap has been established and is still functioning  !correctly. This information could include the date, time, and location of the wiretap;  !identification of the subscriber whose facilities are under surveillance; and identification of all  !voice channels that are connected to the subscriber. This information would be transmitted to  !"the LEA when the wiretap is activated, updated or deactivated, as well as periodically (varying from once every hour to once every 24 hours).  X 4 } j107.  AT&T argues that CALEA permits telecommunications carriers to meet their  X4 !cobligations in this regard by whatever means they choose, including human intervention.e yO '#X\  P6G;P#э AT&T Comments, at 13.e TIA  !<states that the only statutory basis asserted by DoJ/FBI for this capability is that Section 103(a)  !of CALEA states that telecommunications carriers "shall ensure" that their equipment is capable  XM4 !yof providing access to communications and callidentifying information.dMX yOV'#X\  P6G;P#э TIA Comments, at 68.d  SBC concurs that  X64 !CALEA does not mandate that carriers provide the status of wiretaps to law enforcement in real  !time. SBC also argues that test procedures are available by which law enforcement can perform  X4 !this function in concert with carrier personnel.d yO'#X\  P6G;P#э SBC Comments, at 13.d PrimeCo states a more reasonable means of  !verifying whether a wiretap is operational is to perform a periodic trap and trace test of the  X4 !target's phone number.x yO'#&a\  P6G; &P## X\  P6G;P#э PrimeCo Comments, at 20. Finally, AirTouch states that it has been informed by a vendor that the  X4cost of developing a surveillance status message would be "exorbitant."i yO|'#X\  P6G;P#э AirTouch Comments, at 24.i  X4  X4  } k108.  DoJ/FBI state that, in the context of the analog network, the LEA employs non !Mautomated means to determine whether the interception device is accessing the correct equipment,  !service, or facility, but that digital switching precludes the LEA from performing this function  !Vbecause it does not allow similar access to the intercept location. DoJ/FBI argue that without a  !Vsurveillance status message, the LEA would not know when the intercept is turned on or off, or"900*%%ZZ"  X4 !<if it has failed; therefore, important evidence could be lost. yOy'#X\  P6G;P#э DoJ/FBI Joint Petition for Expedited Rulemaking, March 27, 1998, at 5455. Finally, DoJ/FBI object to human  !intervention as a possible solution to this requirement because they state that such intervention  X4would be costly and impractical.nX yO'#X\  P6G;P#э DoJ/FBI Reply Comments, at 73.n  X4 } l109.   Discussion.  CALEA requires carriers to ensure that authorized wiretaps can be  X4 !Vperformed in an expeditious manner, yO( '#X\  P6G;P#э Section 103(a) of CALEA, 47 U.S.C.  1002(a). and we believe that a surveillance status message could  !assist carriers and LEAs in determining the status of such wiretaps. We tentatively conclude,  !chowever, that a surveillance status message does not fall within any of the provisions of Section  !103. We do not believe that it is callidentifying information as defined by CALEA, since the  !information such a feature would provide is unrelated to any particular call. Nor does a  !Asurveillance status message appear to be required under Section 103(a)(1), since it is not  !Mnecessary to intercept either wire or electronic communications carried on a carrier's system. Nor  !are we persuaded by the FBI's interpretation that a surveillance status message is required by  !}CALEA's direction that a carrier "shall ensure" that its system is capable of meeting the Section  !t103(a) requirements. Rather, we note that the Act expressly states: "a telecommunications carrier  !shall ensure that its equipment, facilities, or services . . . are capable of" intercepting  X4 !communications and allowing LEA access to callidentifying information.Yx {O'#X\  P6G;P#э Id.Y We interpret the  !<plain language of the statute to mandate compliance with the capability requirements of Section 103(a), but not to require that such capability be proven or verified on a continual basis.  X64  }z m110.  Thus, we tentatively conclude that the surveillance status punch list item is not an  X4 !assistance capability requirement under Section 103.  yO'#X\  P6G;P#э Section 107(b)(1) of CALEA, 47 U.S.C.  1006(b)(1). However, we invite comment as to how,  !generally, carriers intend to ensure that wiretaps remain operational. How, specifically, would  !"human intervention" be exercised? For example, do carriers plan to periodically check the  !}circuit manually and notify the LEA that the wiretap remains operational? Further, to the extent  !commenters continue to believe that an automated surveillance status message is necessary to  !_implement the requirements of Section 103, we seek comment on the 107(b) factors that the  !"Commission must evaluate under CALEA. In what manner could such a feature be provided?  !Are there cost effective methods of providing surveillance status information to a LEA? Can this  !Vrequirement be accomplished in a manner that minimizes costs to residential ratepayers? Could  !such provision of surveillance status messages compromise the privacy and security of  !communications not authorized to be intercepted? Would the provision of such information"910*%%ZZ"  !"constrain a carrier's ability to develop and deploy new technologies and services? What period  !_of time would be required to develop and deploy such a feature? And, to the extent that this  !information were to fall under the definition of callidentifying information, is it reasonably available to carriers?  X4 8. Continuity check tone  X_4  }~ n111.  Background. This technical requirement would require that, in cases where a LEA  !has obtained authority to intercept wire or electronic communications, a Ctone or dial tone be  !placed on the call content channel (CCC) received by the LEA from the telecommunications  X 4 !carrier until a user of the facilities under surveillance initiates or receives a call.iX  yO '#X\  P6G;P#э This feature differs from a surveillance status message because it permits the LEA to know whether the facilities under surveillance have an active call. A surveillance status message permits the LEA to know that the wiretap is operational, whether or not there is an active call.i At that point,  !the tone would be turned off, indicating to the LEA that the target facilities were in use. This  !qcapability would permit correlation between the time a call is initiated and the time the  !connection is established. The Ctone would also verify that the connection between the carrier's switch and the LEA is in working order.  X4  } o112.  AirTouch states that there is no basis in CALEA for this capability, and that it  !Rparticularly objects to the FBI's demand that CMRS providers be responsible for providing a  !continuity tone over the delivery circuits law enforcement agencies will use. AirTouch asserts  !that in most circumstances, the LEA will obtain its delivery circuits from a LEC, not from a  !CMRS provider. In those circumstances, according to AirTouch, the responsibility to ensure that  !the delivery circuit is operational should fall on the LEC, not the CMRS provider, which has no  X4 !control over either the circuits in question or over the LEC that owns and provides the circuits.l yO'#X\  P6G;P#э AirTouch Comments, at 2425.l  !BellSouth contends that a continuity tone check is technically feasible only when dedicated  X4content channels are provided and otherwise should not be required.jx yO'#X\  P6G;P#э BellSouth Comments, at 15.j  X4  } p113.  DoJ/FBI state that the LEA, in the context of the analog network, can provide  !itself with a continuity tone when it conducts interceptions, and that if a similar capability is not  !provided in digital networks, the LEA will lose the ability to verify the efficacy, accuracy, and  Xg4 !}integrity of a wiretap.g yO #'#X\  P6G;P#э DoJ/FBI Joint Petition for Expedited Rulemaking, March 27, 1998, at 54. DoJ/FBI argue that Section 103 places an affirmative obligation on the  !carrier to verify that its equipment is operational and law enforcement has access to all  !<communications and callidentifying information within the scope of the authorized surveillance. "920*%%ZZ"  !DoJ/FBI maintain that the interim standard does not contain any provisions that give effect to this  !affirmative statutory obligation, and state that its proposal would not require any carrier to  X4implement any particular design or equipment.q yOK'#X\  P6G;P#э DoJ/FBI Reply Comments, at 6770.q  X4  } q114.  Discussion. As with the case of surveillance status messages, we believe that  !continuity tone could assist the LEA in determining the status of a wiretap, but that this technical  !requirement is not necessary to meet the mandates of Section 103(a). Similar to our reasoning  !regarding surveillance status messages, we do not believe that a continuity tone falls within  !CALEA's definition of callidentifying information, nor does it appear to be required under  !pSection 103(a)(1), since it is not necessary to intercept either wire or electronic communications  !carried on a carrier's system. Furthermore, as explained above, the plain language of the statute  !mandates compliance with the capability requirements of Section 103(a), but does not require that  !such capability be proven or verified on a continual basis. Thus, we tentatively conclude that the  X 4continuity tone punch list item is not an assistance capability requirement under Section 103. X yO'#X\  P6G;P#э Section 107(b)(1) of CALEA, 47 U.S.C.  1006(b)(1).  X 4 } r115.  However, to the extent commenters continue to believe such a technical  !requirement is necessary to implement the requirements of Section 103, we seek comment on the  !107(b) factors that the Commission must evaluate under CALEA. In what manner could such  !a feature be provided? Are there cost effective methods of providing a continuity tone to a LEA?  !Can this requirement be accomplished in a manner that minimizes costs to residential ratepayers?  !qCould provision of a continuity tone somehow compromise the privacy and security of  !communications not authorized to be intercepted? For example, could such a tone be detected  !by the subscriber whose facilities are under surveillance? Would the provision of such  !information constrain a carrier's ability to develop and deploy new technologies and services? And finally, what period of time would be required to develop and deploy such a feature?  X' 9. Feature status  X~4  }J s116.  Background. This technical requirement would require a carrier to notify the LEA  !when specific subscriptionbased calling services are added to or deleted from the facilities under  !Isurveillance, including when the subject modifies capabilities remotely through another phone or  !through an operator. Examples of such services are call waiting, call hold, threeway calling,  X$4 !conference calling, and call return.= $ yO"'#X\  P6G;P#э We note that some services, such as call return, are available on either a subscription or percall basis. DoJ/FBI assert, however, that the availability of percall features is irrelevant to their petition and that they do not seek to require carriers to notify a LEA of a subscriber's use of these features. They explain that carriers should simply alert a LEA to the assignment or removal of features that can affect call content or callidentifying"%0*%% %" information from a line under surveillance. They conclude that, "[a]s a practical matter, law enforcement will know in advance what percall features a particular carrier makes available to its subscribers, and will have collected enough information to predict the . . . likely use of such features, before initiating an intercept, and will  {O'be able to order the appropriate number of call content and call data channels based on this information." See DoJ/FBI Reply Comments, at 74.= Also, the carrier would be required to notify the LEA if"$3z0*%%ZZ"  !=the telephone number of the facilities under surveillance was changed or service was  X4disconnected.z yO'#X\  P6G;P#э DoJ/FBI Joint Petition for Expedited Rulemaking, March 27, 1998, at Appendix 1, 1415.  X4 } t117.  US West states that feature status information does not identify any telephone  X4 !<numbers or digits dialed by subscribers, and is therefore beyond the scope of CALEA.o  yO_ '#X\  P6G;P#э US West Reply Comments, at 34.o SBC  X4and BellSouth agree that feature status messages are not callidentifying information. yO'#X\  P6G;P#э SBC Comments, at 13; BellSouth Comments, at 14.  X_4  } u118.  AT&T states that notification to the LEA of a change in feature status, indicating  XH4 !that a subscriber has added or has dropped services, is provided currently by manual means, i.e.,  !lin response to a subpoena to the carrier. AT&T argues that nothing in CALEA requires the  !automation of such a process, and in fact the complexity and cost involved in doing so likely  X 4 !would be enormous.e *  yO'#X\  P6G;P#э AT&T Comments, at 13.e PrimeCo states that the DoJ/FBI claim that feature status information  !V"represents the most appropriate way to 'meet the assistance capability requirements of Section  X 4103 by costeffective methods'" is unsupported by the record.m  yOB'#X\  P6G;P#э PrimeCo Reply Comments, at 5.m  X 4  }# v119.  TIA states that it is unclear whether DoJ/FBI contemplate the delivery of a feature  !&status message at the time the subscriber requests the change or at the time the change is actually  !executed. TIA asserts that if carriers were required to provide feature status messages at the time  !that the subscriber submits a request, they would have to reconfigure entire customer service  !databases and other operating software to provide automatic messaging to law enforcement a  X64capability that is not supported by the present design of these systems.g6J  yO1!'#X\  P6G;P#э TIA Comments, at 7072.g  X4 } w120.  DoJ/FBI disagree with the above parties, contending that the provision of an  !gautomated feature status message is essential to enable the LEA to procure the number of delivery  ! channels or circuits required to ensure that the interception is fully effectuated and the intercepted"40*%%ZZ"  !material delivered as authorized. DoJ/FBI argue that whenever a subscriber has the capability  !of making multiparty calls, the LEA must have access to all call content channels to ensure that  !it will receive all communications and callidentifying information that are subject to a court  !order or other lawful authorization. DoJ/FBI contend that, in modern networks, the subscriber  !may change calling services at any time and, thus, the LEA needs to know what features are  !activated on a subscriber's service at any time in order to determine how many interception  !delivery channels and circuits are necessary to ensure that call content and callidentifying  X_4 !}evidence are not lost._ yO'#X\  P6G;P#э DoJ/FBI Joint Petition for Expedited Rulemaking, March 27, 1998, at 56. In response to TIA's comments, DoJ/FBI state that they are proposing  !4that the LEA be notified only when a change in feature status becomes effective for the  X14subscriber, not when the subscriber requests a change.1X yO: '#&a\  P6G; &P## X\  P6G;P#э DoJ/FBI Reply Comments, at 73.  X 4 }\ x121.  Discussion. Similar to surveillance status messages and continuity tones, we  !ubelieve that feature status messages could be useful to a LEA, but that provision of these  !messages from a carrier to a LEA is not required to meet the mandates of Section 103(a). First,  !we believe it is clear that feature status messages do not constitute callidentifying information  !because they do not pertain to the actual placement or receipt of individual calls. Further, feature  !status messages do not appear to be required under Section 103(a)(1) because they are not  !necessary to intercept either wire or electronic communications carried on a carrier's system.  !Rather, they would simply aid a LEA in determining how much capacity is required to implement  !and maintain effective electronic surveillance of a target facility, information that could be useful  !in assuring that an interception is fully effectuated and the intercepted material delivered as  !authorized. However, as noted by AT&T, the information that would be provided by feature  !3status messages can be provided by other means, such as a subpoena to the carrier. In any event,  !we reiterate our view that the plain language of the Act mandates compliance with the assistance  !capability requirements of Section 103(a), but does not require carriers to implement any specific  !Rquality control capabilities to assist law enforcement. Thus, we tentatively conclude that the  !feature status punch list item does not meet the assistance capability requirements of Section  X4103. yO.'#X\  P6G;P#э Section 107(b) of CALEA, 47 U.S.C.  1006(b).  Xg4  } y122.  We note, however, that at least some of the information that would be provided  !Vby feature status messages for example, a change to the phone number of the facilities under  !surveillance must be provided to the LEA expeditiously if electronic surveillance is to be  !effective. We request comment on whether this information can be provided in such an  ! expeditious manner by other means. We also request comment on any other aspects or  !interpretations of a feature status capability that might cause at least some portion of this feature"5x0*%%ZZ"  !to meet the assistance capability requirements of Section 103. To the extent commenters believe  !+that such a capability is necessary to implement the requirements of Section 103, we seek a  !hparticularized description of such a capability and comment on the 107(b) factors that the  !Commission must evaluate under CALEA. In what manner could such a capability be provided?  !Are there cost effective methods of providing feature status messages to a LEA? Can this  !Vrequirement be accomplished in a manner that minimizes costs to residential ratepayers? Could  !provision of feature status messages to a LEA compromise the privacy and security of  !communications not authorized to be intercepted? Would the provision of such information  !constrain a carrier's ability to develop and deploy new technologies and services? And finally,  X14what period of time would be required to develop and deploy such a capability?  X ' 10. Dialed digit extraction  X 4 } z123.  Background. This capability would require the telecommunications carrier to  !provide to the LEA on the call data channel any digits dialed by the subject after connecting to  !}another carrier's service (also known as "postcutthrough digits"). One example of such dialing  ! and signaling would occur when the subject dials an 800 number to access a long distance carrier.  !After connecting to the long distance carrier through the 800 number, the subject then dials the telephone number that is the ultimate destination of the call.  X64 }9 {124.  TIA maintains that postcutthrough digits are not callidentifying information for  !cthe initial carrier and are not reasonably available to that carrier. Further, according to TIA, the  !delivery of postcutthrough dialing information pursuant to a pen register order would not protect  !E"the privacy and security of . . . callidentifying information not authorized to be intercepted"  !because postcutthrough digits could include credit card numbers and other substantive  !Iinformation such as responses to an automatic queuing system, which the LEA is not entitled to  !"without a Title III authorization. TIA states that a carrier would have no means of segregating  !protected information that is not subject to a pen register order from callrouting digits that are  !provided. Finally, TIA argues that postcutthrough dialing information is already available to  !&law enforcement under the industry interim standard pursuant to either a Title III content intercept  !order or a pen register order or subpoena directed to the longdistance carrier that completes the  X94 !/second stage of the call.~9 {O'#X\  P6G;P#э See also AirTouch Reply Comments, at 10.~ Therefore, TIA concludes that the real agenda of DoJ/FBI is to be  !Vable to obtain post cutthrough digits through a pen register order addressed solely to the carrier  !conducting the initial intercept, in order simply to avoid the inconvenience and expense associated  X4with the two methods already available to it.gZ yO"'#X\  P6G;P#э TIA Comments, at 4146.g "60*%%ZZ"Ԍ X4 } |125. Ameritech, AT&T, CDT, EPIC/EFF/ACLU, Primeco, SBC, and USTA voice  X4 !concerns similar to TIA's. yOb'#X\  P6G;P#э Ameritech Comments, at 8; AT&T Comments, at 10; CDT Comments, at 4144; EPIC/EFF/ACLU Comments, at 27; Primeco Comments, at 13; SBC Comments, at 14; and USTA Comments, at 7. CDT states that the legislative history of CALEA makes clear that  X4 !callidentifying information does not include dialed numbers after call cutthrough.d  yO'#X\  P6G;P#э CDT Comments, at 42.d CDT  !contends, however, that the fact that this capability is not mandated by CALEA in no way  !Vprevents the LEA from obtaining postcutthrough digits because those digits are available from  X4the longdistance carrier that completes the call.m yO '#X\  P6G;P#э CDT Reply Comments, at 1316.m  Xv4  X_4  }z }126.  US West states that, from the perspective of a LEC, once a subject establishes a  !connection with an IXC the call has terminated at the IXC's platform, and the LEC has no special  X14 !/access to or reason to know the second number dialed.h1@ yO"'#X\  P6G;P#э US West Comments, at 18.h AirTouch states that it is undisputed  !that CMRS carriers cannot provide postcutthrough digits without additional developmental work  !<by vendors and major system modifications by carriers. Therefore, according to AirTouch, this  !capability is not reasonably available to the CMRS industry. Further, AirTouch maintains that  !<law enforcement may receive these digits either with a Title III order or a callidentifying order  X 4 !served on the longdistance carrier that completes the second stage of the call.o  yO?'#X\  P6G;P#э AirTouch Reply Comments, at 10.o Finally,  !according to AirTouch, a vendor has advised that the cost of developing the postcutthrough  !dialing capability would likely exceed the cost of developing all of the other punch list items  Xy4combined.iy`  yO'#X\  P6G;P#э AirTouch Comments, at 18.i  Xb4  XK4  } ~127.  DoJ/FBI state that dialed digits used to complete a call are "dialing or signaling  !yinformation" that identifies the "destination" of the call and falls within CALEA's definition of  !"callidentifying information," but that this information is not included in the industry interim  X4 !standard.q  yO '#X\  P6G;P#э DoJ/FBI Reply Comments, at 3839.q DoJ/FBI contend that this information must be provided because without it the LEA  !may find it substantially more difficult, if not impossible, to establish the identity of the party to  !+whom the subject is speaking due to the fact that the subject may use multiple long distance  !carriers. For example, according to DoJ/FBI, in an illegal drug case the LEA might be unable  !"to link a drug distributor with the source of the drugs because the LEA would have information"7 0*%%ZZ"  !}only about which long distance company the distributor was using not the subsequent postcut !through digits that would identify the source. DoJ/FBI conclude by stating that CALEA does not  !~draw any distinction between precutthrough and postcutthrough dialing or signaling  !information to process, direct, or complete a call; and that there is no privacybased reason under  !CALEA, the pen register statutes, or the Constitution to prevent a telecommunications carrier  X4from providing all such information to the LEA. yO'#X\  P6G;P#э DoJ/FBI Joint Petition for Expedited Rulemaking, March 27, 1998, at 3941.  X_4 } 128.   Proposal.  We tentatively conclude that post-cut-through digits representing all  !/telephone numbers needed to route a call, for example, from the subscriber's telephone through  !its LEC, then through IXC and other networks, and ultimately to the intended party are  !call-identifying information. We seek additional comment on whether such callidentifying  !information is reasonably available to the carrier originating the call. Currently, the second set  !lof numbers a subject dials (the final destination of the call) apparently is transmitted over the  !&CCC (the content portion of the connection) and not over the CDC (a separate signaling channel).  !/This method of transmission raises two primary questions: (1) Since the postcutthrough digits  !are provided on the content portion of the connection, should those numbers be considered  !Vcontent for purposes of CALEA?; and (2) Technically, how can such postcutthrough digits be  !}extracted from the content channel and delivered to a LEA by a carrier? We seek comment on  !4whether originating, intermediate, or terminating carriers can deliver such callidentifying  !}information by costeffective means. We are also aware of the concerns expressed by industry  !and privacy advocates that this dialed digit extraction feature could prove to be inordinately  !expensive to design, build, and incorporate into telephone network infrastructures. The record  !established thus far does not reflect any specific cost estimates but does raise the possibility that  X4 !Ithere may be newly available, less expensive solutions for this feature,X {O'#X\  P6G;P#э See, e.g., Bell Emergis Reply Comments, at 23. although it is not clear  !yif such solutions have the capability of separating postcutthrough callidentifying digits from  !Vthose dialed to perform other functions. We seek comment on this proposal and, as required by  !section 107(b), on the other factors that we must consider in establishing a technical requirement.  !}Can it be accomplished in a manner that minimizes costs to residential ratepayers? Additionally,  !we solicit comment on whether our proposal would positively or negatively affect the provision  !of new technologies and services to the public. Commenters are asked to provide detailed  !information regarding the amount of time and conditions that they believe will be necessary to  !successfully develop and deploy this technical requirement in telecommunications systems.  X"4 !Finally, w e request detailed comment on how the privacy and security of communications that  !lare not authorized to be intercepted can be protected. In particular, we request comment on  !whether and how such callidentifying information can be distinguished from digits dialed to  X4 !@perform other functions (e.g., to input a credit card number or to access information services after the call reaches its final destination in the PSTN). " 80*%%ZZo"Ԍ X' ę E.  Disposition of JSTD025  X4  X4 } 129. Parties supporting adoption of JSTD025 as the final standard state that if  !deficiencies are found, the Commission should remand to TIA the task of remedying these  !deficiencies. TIA states that the telecommunications industry drafted the interim standard and  !is best qualified to modify it pursuant to any instructions from the Commission. TIA raises  !several reasons as justification for such an approach: the primary role of the industry in  !ystandardssetting under CALEA, the technical complexity of the matters at issue, the lack of  !<specificity in the DoJ/FBI petition regarding the bases of the claimed deficiencies of the interim  !standard, and the fact that the industry is best positioned to adopt standards which provide for  !CALEA compliance while minimizing costs and impact on ratepayers. TIA also believes that  X 4the Commission lacks the experience and resources to modify the standard on its own.d  yO| '#X\  P6G;P#э TIA Comments, at 29.d  X 4 }\ 130. AT&T, Nextel Communications, Inc. (Nextel), the Personal Communications  X 4 !Industry Association (PCIA), SBC, and US West generally concur with TIA. X yO'#X\  P6G;P#э AT&T Comments, at 1517; Nextel Comments, at 13; PCIA Comments, at 67; SBC Comments, at 1617; US West Comments, at 3133. US West states  !that if we decide to modify JSTD025 in any respect, we should remand the revised standard for  !uimplementation to TR45.2 because that TIA subcommittee has been developing technical  Xy4requirements for CALEA for three years.ky yO'#X\  P6G;P#э US West Comments, at 3133.k  XK4  } 131. DoJ/FBI disagree, stating that a remand to TR45.2 would result in substantial delay  !<in the implementation of CALEA's assistance capability requirements. DoJ/FBI assert that the  !=Commission has the expertise required to identify and prescribe appropriate technical  X4requirements and standards under section 107(b).h@ yO'#X\  P6G;P#э DoJ/FBI Comments, at 26.h  X4     X4  }W 132. Proposal. We believe that the technical requirements proposed herein can be most  !efficiently implemented by permitting Subcommittee TR45.2 of the TIA to develop the necessary  !specifications in accord with our determinations. We note that CALEA contemplates that  !standards will be developed either "by an industry association or standard-setting organization,  X~4 !or by the Commission."j~ yO"'#X\  P6G;P#э 47 U.S.C.  1006(a)(2).j We note that both LEAs, carriers and manufacturers are voting  !members of the Subcommittee. While we could undertake this task, we believe that the  !Subcommittee already has the experience and resources in place to resolve these issues more"P9` 0*%%ZZ"  !quickly. Both law enforcement agencies and telecommunications manufacturers and carriers  !<participate on the Subcommittee. The Subcommittee worked diligently over a period of several  !years to craft JSTD025 and both LEAs and privacy groups agree with or, at least do not raise  !any specific objections to the vast majority of the features of that standard. A Commission !based standardsetting activity would necessarily have to rely heavily on the Subcommittee to  !modify JSTD025 in any event, and thus would very likely take longer than industrybased  !processes to develop a final safe harbor standard. Our decision to rely on industry to develop  !the final technical specifications reflects our commitment to achieve a CALEA solution as expeditiously as possible.  X 4  }z 133.  Accordingly, we expect TIA to undertake the task of modifying JSTD025 to be  !consistent with the technical requirements we ultimately adopt in this proceeding. Further, we  X 4 !<expect the TIA to complete any such modifications to JSTD025 within 180 days of release of  !ythe Report and Order in this proceeding. While this is an ambitious schedule, we believe it is  !pachievable because the TIA has been examining CALEA technical standards issues for several  !years, and the modifications to JSTD025 are likely to be relatively limited. In fact, all of the  !technical requirements that we have identified for modification were previously considered in  !Vdetail by TIA Subcommittee TR45.2. We note that any telecommunications carrier conforming  !with the revised standard will be considered to have complied with CALEAs safe harbor  !provisions under section 107(a)(2). We consider 180 days a sufficient time period for industry  !to adopt revised technical standards compliant with CALEA and we believe that industry will be  !able to comply with the core requirements of JSTD025 (excluding the packetmode feature) by  !June 30, 2000. Therefore, we do not plan to extend the CALEA compliance deadline for the core  !JSTD025 requirements beyond that date, except in the case of individual extenuating  X4 !Ecircumstances, to which the criteria of section 107(c) of CALEA would apply.q {OQ'#X\  P6G;P#э See 47 U.S.C.  1006(c).q Based on  !comments received in response to this Further NPRM, we will set a separate deadline for  !compliance with the additional technical requirements that we determine CALEA mandates. We seek comment on these tentative findings and conclusions.  X|'  Xe'F.Other Technologies and Systems  X74 }  134.  We note that TIA's JSTD025 applies only to "wireline, cellular, and broadband  X 4 !+PCS carriers." Z yO+!'#&a\  P6G; &P## X\  P6G;P#э TIA Comments, at 15 n.43. CALEA assistance capability requirements for other telecommunications  !carriers, including paging, specialized mobile radio (SMR), and satellite services, are not covered  !3by JSTD025. Industry associations or standardsetting organizations that represent such carriers  !<may establish voluntary standards to achieve compliance with Section 103 by the June 30, 2000  !Vdeadline, and take advantage of the safe harbor provision of section 107(a). The absence of an" :0*%%ZZ|"  !industry standard, however, does not relieve such carriers from the obligations imposed by  X4 !<Section 103.m yOb'#X\  P6G;P#э 47 U.S.C.  1006(a)(3)(B).m In the absence of a publicly available standard, a carrier will have to work with  !its vendors to develop an individual CALEA solution. And, as noted above, because compliance  !pwith an industry standard is voluntary, not compulsory, under the Act, a carrier is free to choose a CALEA solution that is specifically tailored to its particular system and technology.  Xv4  } 135.  We note that, with regard to these other carriers, the Commission has received no  !"petitions asking us to either set a standard in the absence of one or find that a given standard is  !deficient. Nevertheless, we believe that the certainty we provide in establishing the technical  !requirements for wireline, cellular, and broadband PCS carrier CALEA compliance will enable  !manufacturers and providers of other telecommunication services to work with the law  !enforcement community to develop technical requirements that will meet CALEA's mandates,  !and that could be specified in voluntary industry standards that would allow carriers to take advantage of the safe harbor under section 107(a).  X 4 } 136.  The comments from industry associations, manufacturers, and telecommunications  !}carriers not covered by the industry interim standard urge the Commission to resolve the dispute  Xy4 !8regarding TIA's JSTD025 standard and the requirements for compliance with CALEA.yX yO'#&a\  P6G; &P## X\  P6G;P#э PCIA Comments, at 4; AMTA Comments, at 5; Nextel Comments, at 13.  !Generally, these commenters support the policy of allowing industry associations to develop their  !Vown standards for CALEA compliance rather than the Commission doing so through regulatory  X44 !mandates.y4 yO'#X\  P6G;P#э PCIA Comments, at 4; AMTA Comments, at 1.y PCIA warns that the Commission should not "substitute its judgment for the  !reasoned consensus of an overwhelming majority of industry participants." Both PCIA and  !Nextel suggest that the Commission should instead remand "any final determination on  X4 !capabilities to TIA's TR45 expert committee."|x yO'#X\  P6G;P#э Nextel Comments, at 13; PCIA Comments, at 6.| Moreover, Nextel's reply comments stress that  !Ithe "Commission must not preclude other industry associations or standardsetting organizations  !Afrom promulgating standards or requirements that are aimed more at specific services or  !Itechnologies such as paging, digital dispatch or wireless data to the extent any of these services  X4 !_are covered by CALEA."l yOL!'#X\  P6G;P#э Nextel Reply Comments, at 4.l Nextel's comments generally stress the importance of creating  ![specific standards that focus on network design and the information generated by certain"|;0*%%ZZ "  !communications methods, and explain that the Commission's rules should not foreclose the  X4development of such alternative standards.c {Ob'#X\  P6G;P#э Id. at 1516.c  X4 }{ 137.  These commenters also emphasize that they will work closely with law  !"enforcement to develop standards, which would function as safe harbors, for those carriers not  !Vcovered by the industry interim standard. For instance, PCIA explains that on May 4, 1998, the  !cCALEA Subcommittee of its Technical Committee, with input from law enforcement, published  X_4 !lVersion 1.0 of its CALEA Specification for Traditional Paging.d_Z yOj '#X\  P6G;P#э PCIA Comments, at 7.d Pursuant to this standard,  !IPCIA contends that paging providers offering oneway paging service can comply with Section  !103 and be afforded safe harbor under section 107(a) by providing law enforcement officials,  X 4 !upon presentation of a valid warrant, with a cloned pager.Y  {O'#X\  P6G;P#э Id.Y PCIA's subcommittee also plans  ! to develop and publish standards for advanced paging services and ancillary service providers that  X 4would establish a CALEA safe harbor for carriers providing such services.a | {O'#X\  P6G;P#э Id. at 78.a  X 4 }F 138.  Similarly, the American Mobile Telecommunications Association (AMTA) notes  !4that "its members have in the past and will in the future cooperate with law enforcement  !personnel in courtordered electronic surveillance to the maximum extent possible, whether or not  Xy4 !8that assistance is provided pursuant to CALEA requirements."jy yO8'#X\  P6G;P#э AMTA Comments, at 2.j AMTA also explains that  !halthough the FBI has been silent in response to questions regarding whether the technical  !parameters of AMTA members' systems fall under the auspices of CALEA, AMTA has  X44 !nonetheless undertaken a standardssetting process for SMR systems._4 {O'#X\  P6G;P#э Id. at 4._ AMTA states that it fears  !ythat unless it develops a SMR standard for compliance, its members might face enforcement  X4actions and economic penalties under the provisions of the Act._0  {O'#X\  P6G;P#э Id. at 5._  X4 }0 139.  Comments by carriers and associations using technologies and systems not covered  !/by JSTD025 generally express concern about the lack of clarification regarding whether their  X4 !cequipment, facilities and services are subject to the requirements of CALEA.  {O%'#X\  P6G;P#э See e.g., Nextel Reply Comments, at 15 n. 38; AMTA Comments, at 2. Although it did"<T 0*%%ZZ"  !not comment directly on the standards issue, Iridium explains in its petition for extension of  !CALEA's compliance deadline that, as a satellite provider, it went to great lengths during the last  !four years to analyze the technical implications that CALEA would have for its system, to discuss  !the systems' intercept capabilities with the government, and to explore electronic surveillance  X4 !Zarchitecture solutions particular to its system.Y\ yO'#X\  P6G;P#э Joint Petition For an Extension of the CALEA Assistance Capability Compliance Date by Iridium United  {O'States, L.P., and Motorola, Inc., CC Docket No. 97213, filed on June 30, 1998, at 6 (Iridium Petition for  {O'Extension).Y To date, however, law enforcement officials have  X4 !<been unwilling to "state in writing that Iridium's approach is compliant with CALEA."` {O* '#X\  P6G;P#э Id. at 11.` Iridium  Xv4 !further notes that there is no safe harbor for satellite providers._v~ {O '#X\  P6G;P#э Id. at i._ Globalstar, another satellite  !provider, also in the context of advocating an extension of CALEA's compliance date, comments  XH4 !on the unique difficulties faced by satellite service providers.H yO '#X\  P6G;P#э Globalstar, L.P. Reply Comments for Petitions for Extension of Compliance Deadline, at 23. Although Globalstar has received  !noncommon carrier status, and is therefore not subject to the Act, it explains that the ability of  !other satellite carriers to meet CALEA's capability requirements is complicated by the facts that  !the Attorney General has not adopted capacity standards for satellite services and that global  X 4satellite systems must receive multiple authorizations from the countries they serve.  {O='#X\  P6G;P#э Id. at 4. See also supra  31 & n.57.  X 4 } 140.  AirTouch maintains that the problems faced by the paging industry illustrate the  !difficulties faced by these other carriers in dealing with law enforcement. As AirTouch explains,  !"[t]he paging industry has long accommodated law enforcement's interception needs by furnishing  !p'clone' pagers" and until recently the FBI has given the paging industry the impression that doing  Xb4 !Zso satisfies CALEA's requirements.b2  yOE'#X\  P6G;P#э AirTouch Comments on Petitions for Extension of Compliance Deadline, at 5. AirTouch contends the FBI has only recently declared that  !"'clone' pagerbased interceptions have only limited effectiveness and utility, and fail to fully  X44meet CALEA's Section 103 requirements."Y4  {O'#X\  P6G;P#э Id.Y  X4  }O  141.  We seek comment on what role, if any, the Commission can or should play in  !assisting those telecommunications carriers not covered by JSTD025 to set standards for, or to  !Vachieve compliance with, CALEA's requirements. Insofar as such carriers argue that CALEA  !Econtemplates multiple or different standards for services such as paging, digital dispatch and"=T 0*%%ZZ"  X4 !cwireless data, yOy'#X\  P6G;P##&a\  P6G; &P## X\  P6G;P#э Nextel Reply Comments, at 4. we seek comment regarding how our determinations regarding JSTD025, the  !FBI's punch list items, and location and packetmode information will affect the requirements and  !<standards already adopted or currently being established by these other industry segments. For  !example, can the Commission's determinations in this rulemaking proceeding be adapted to these  !cother technologies? Further, we request comment on if and how we should consider the impact  !Iof the technical requirements we ultimately adopt in this proceeding on these other technologies and services.  X_'  XH'G. Other Matters  X 4 } 142.   Section 109(b) of CALEA lays out a detailed regime under which  !telecommunications carriers or any other interested person may petition the Commission to  !determine whether, for equipment, facilities, or services installed or deployed after January 1,  !1995, compliance with the Section 103 assistance capability requirements is "reasonably  X 4 !achievable."  The Attorney General must be notified of the petition, and the Commission must  !cmake a determination under the "reasonably achievable" standard within one year after the date  !such a petition is filed. When considering any such petition under the "reasonably achievable"  !4standard, "the Commission shall determine whether compliance would impose significant  !cdifficulty or expense on the carrier or on the users of the carrier's systems." Eleven factors are  !to be considered by the Commission in determining whether compliance with the assistance  X44capability requirements of Section 103 is reasonably achievable.4XY yO='#X\  P6G;P#э Those factors are:  yO'  )The effect [of compliance] on public safety and national security;(#  yO'  )The effect [of compliance] on rates for basic residential telephone service;(#  yO]'  )The need to protect the privacy and security of communications not authorized to be intercepted;""(#  yO%'  )The need to achieve the capability assistance requirements of Section 103 by costeffective methods;(#  yO'  )The effect [of compliance] on the nature and cost of the equipment, facility, or service at issue;(#  yO}'  )The effect [of compliance] on the operation of the equipment, facility, or service at issue;(#  yOE'  )The policy of the United States to encourage the provision of new technologies and services to the public;(#  yO'  )The financial resources of the telecommunications carrier;(#  yO'  )The effect [of compliance] on competition in the provision of telecommunications services;(#  yOe '  )The extent to which the design and development of the equipment, facility, or service was initiated before January 1, 1995; (#  yO!'  )Such other factors as the Commission determines are appropriate.(# 47 U.S.C.  1008(b)(1). ">00*%%ZZ|"Ԍ X4 } 143.    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  !reasonably achievable. The Attorney General may agree to compensate the affected carrier for  !Ethe "additional reasonable costs" of complying with the assistance capability requirements of  !Section 103. If the Attorney General does not agree to pay such additional reasonable costs, the  Xv4affected carrier would be deemed to be in compliance with CALEA's capability requirements.: vY yO'#X\  P6G;P#э 47 U.S.C.  1008(b)(2). We also note that section 109 provides that "[t]he 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 capabilities necessary to comply with Section  {O '103." 47 U.S.C.  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,  yOi 'facility, or service is replaced or significantly upgraded or otherwise undergoes major modification." 47 U.S.C.  yO1' 1008(d).:  XH4  } 144.    As discussed in paragraph 18, supra, in March 1998 CDT submitted a petition for  !rulemaking to the Commission. In its petition, CDT requests relief from the Commission under  !psection 109 (as well as section 107) of CALEA. CDT argues that "compliance with CALEA is  !not reasonably achievable with respect to equipment, facilities, and services deployed after  !January 1, 1995, for the simple reason that carriers have had to make changes to their systems  X 4 !/not knowing what was required to comply with CALEA."d Y yO"'#X\  P6G;P#э CDT Petition, at 16.d Lack of a CALEA standard, or a  !dispute about the CALEA standard, however, is not grounds for a rulemaking under section 109.  !/Rather, a section 109 determination by the Commission presupposes that the final requirements  ! that must be met by telecommunications carriers under Section 103 are in place. Those  !requirements, however, are still in dispute. Accordingly, we are herein dismissing without prejudice that portion of CDT's petition that relies on section 109.  X64  } 145.    Finally, as discussed in paragraphs 1617, supra, in July 1997 CTIA filed a petition  !for rulemaking requesting that the Commission establish a standard to implement the mandates  !of Section 103, and in March 1998 DoJ/FBI submitted a motion to dismiss that petition on the  !pgrounds that the December 1997 adoption of JSTD025 rendered CTIA's petition moot. CTIA  !agrees with DoJ/FBI that its petition is moot, both because the adoption of the industry interim  !Vstandard supersedes its request for the Commission to establish a CALEA standard by rule and  !because its request in its petition to extend the CALEA compliance deadline has been addressed"?* 0*%%ZZ"  X4 !cin this proceeding.,Y yOy'#X\  P6G;P#э CTIA filed separate comments in response to the April 20, 1998 Public Notice which sought comment on  {OA'whether CTIA's Petition for Rulemaking should be dismissed as moot. See CTIA Comments, at 6., We agree. Accordingly, we herein dismiss as moot CTIA's July 16, 1997  X4Petition for Rulemaking.n"Y yO'#X\  P6G;P#э 47 C.F.R.  1.401(e).n  X' IV.  PROCEDURAL INFORMATION  Xv' A.Scope of Proceeding  XH4 }q 146.    With this Further Notice of Proposed Rulemaking, we propose rules to implement  !CALEA pursuant to section 229 of the Communications Act of 1934, as amended, 47 U.S.C.  !section 229. The proposed action is also authorized by sections 1, 4, 301, 303, and 332 of the  !Communications Act of 1934, as amended, and section 107(b) of CALEA, 47 U.S.C. sections  !151, 154, 301, 303, 332, and 1006(b). We encourage interested parties to comment not only on  !the specific proposals that are contained in this Further NPRM but also to provide alternatives  !to our recommendations and proposed rules that they believe will enable us to implement CALEA  !Iefficiently and effectively. We further request that commenters include their recommendations  !and the text of specific proposed rules in their initial comments, so that other parties will have the opportunity to comment on those proposals in their reply comments.  XM' B.Ex Parte  X4 } 147.    This is a permitbutdisclose notice and comment rulemaking proceeding. Ex parte  !presentations are permitted, except during the Sunshine Agenda period, provided they are  !disclosed as provided in the Commission's rules. See generally 47 C.F.R. sections 1.1202, 1.1203, 1.1206(a)(1), and 1.1206(b).  X4 C.Initial Regulatory Flexibility Analysis  X4 } 148.    As required by the Regulatory Flexibility Act (RFA),Y yO'#X\  P6G;P##&a\  P6G; &P## X\  P6G;P#э 5 U.S.C.  603. the Commission has  !prepared an Initial Regulatory Flexibility Analysis (IRFA) of the expected significant economic  !impact on small entities by the policies and rules suggested in this Communications Assistance  X;4 !&for Law Enforcement Act, Further Notice of Proposed Rulemaking (CALEA Further NPRM).  !Written public comments are requested on the IRFA. Comments must be identified as responses  !to the IRFA and must be filed by the deadlines for comments on the CALEA Further NPRM"@B0*%%ZZ"  !provided above on the first page, in the heading. The Secretary shall send a copy of the CALEA  !Further NPRM, including the IRFA, to the Chief Counsel for Advocacy of the Small Business  X4Administration (SBA) in accordance with paragraph 603(a).kZY {OK'#X\  P6G;P#э The Regulatory Flexibility Act, 5 U.S.C.  601 et seq. has been amended by the Contract with America Advancement Act of 1996, Pub. L. No. 104121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA is the "Small Business Regulatory Enforcement Act of 1996" (SBREFA).k  X4  }  I.  Need for and Objectives of the Proposed Rules : This Further Notice of Proposed  X4 !Rulemaking responds to the legislative mandate contained in the Communications Assistance for  !ELaw 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.).  X54 } II.  Legal Basis : The proposed action is authorized under the Communications  !/Assistance for Law Enforcement Act, Pub. L. No. 103414, 108 Stat. 4279 (1994) (codified as  !'amended in scattered sections of 18 U.S.C. and 47 U.S.C.). The proposed action is also  !authorized by sections 1, 4, 201, 202, 204, 205, 218, 229, 332, 403 and 503 of the  !cCommunications Act of 1934, as amended, 47 U.S.C. sections 151, 154, 201205, 218, 229, 301, 303, 312, 332, 403, 501 and 503.  X' } III.  Description and Estimate of the Number of Small Entities To Which the  X}4 !Proposed Rules Will Apply : The proposals set forth in this proceeding may have a significant  !economic impact on a substantial number of small telephone companies identified by the SBA.  ! We seek comment on the obligations of a telecommunications carrier for the purpose of complying with CALEA. H H  X 4  } 149.    The RFA generally defines "small entity" as having the same meaning as the term  !A"small business," "small organization," and "small governmental jurisdiction" and the same  !meaning as the term "small business concern" under the Small Business Act, unless the  X4 !Commission has developed one or more definitions that are appropriate to its activities.VY yO`'#X\  P6G;P#э 5 U.S.C.  601(3) (incorporating by reference the definition of "small business concern" in 5 U.S.C. 632). Pursuant to 5 U.S.C.  601(3), the statutory definition of a small business applies "unless an agency after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition in the Federal Register." V Under  !/the Small Business Act, a "small business concern" is one that: (1) is independently owned and  !hoperated; (2) is not dominant in its field of operation; and (3) meets any additional criteria  X4 !established by the Small Business Administration (SBA).Y {O#'#X\  P6G;P#э 15 U.S.C.  632. See, e.g., Brown Transport Truckload, Inc. v. Southern Wipers, Inc., 176 B.R. 82 (N.D.Ga. 1994). The SBA has defined a small"A 0*%%ZZ"  !Jbusiness for Standard Industrial Classification (SIC) categories 4812 (Radiotelephone  !Communications) and 4813 (Telephone Communications, Except Radiotelephone) to be small  X4 !entities when they have fewer than 1,500 employees.gY yOK'#X\  P6G;P#э 13 C.F.R. 121.201.g We first discuss generally the total  !8number of small telephone companies falling within both of those SIC categories. Then, we  ! discuss the number of small businesses within the two subcategories, and attempt to refine further  !3those estimates to correspond with the categories of telephone companies that are commonly used under our rules.  XH4 } 150.    Telephone Companies (SIC 483). Consistent with our prior practice, we shall  !continue to exclude small incumbent LECs from the definition of a small entity for the purpose  X 4 !of this IRFA.0 XY {O% '#X\  P6G;P#э See Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, First Report and Order, 11 FCC Rcd 15499 (1996) at  132830, 1342 (Local Competition First Report and Order). We note that the U.S. Court of Appeals for the Eighth Circuit has stayed the pricing rules developed in the Local Competition First Report and Order, pending review on the merits. Iowa Utilities Board v. FCC, No. 963321 (8th Cir., Oct. 15, 1996).0 Nevertheless, as mentioned above, we include small incumbent LECs in our  ![IRFA. Accordingly, our use of the terms "small entities" and "small businesses" does not  !/encompass "small incumbent LECs." We use the term "small incumbent LECs" to refer to any  X 4incumbent LECs that arguably might be defined by SBA as "small business concerns."| Y {O'#X\  P6G;P#э See 13 C.F.R. 121.210 (SIC 4813).|   X 4  } 151.     Total Number of Telephone Companies Affected.  Many of the decisions and rules  !adopted herein may have a significant effect on a substantial number of the small telephone  !companies identified by SBA. The United States Bureau of the Census (the Census Bureau)  !creports that, at the end of 1992, there were 3,497 firms engaged in providing telephone services,  XO4 !as defined therein, for at least one year.1OY {O'#X\  P6G;P#э United States Department of Commerce, Bureau of the Census, 1992 Census of Transportation,  {Of'Communications, and Utilities: Establishment and Firm Size, at Firm Size1-123 (1995) ("1992 Census").1 This number contains a variety of different categories  !@of carriers, including local exchange carriers, interexchange carriers, competitive access providers,  ! cellular carriers, mobile service carriers, operator service providers, pay telephone operators, PCS  !providers, covered SMR providers, and resellers. Some of these providers for example, all  !VSMR providers are not covered by this Further NRPM, and it seems certain that some of the  !3,497 telephone service firms may not qualify as small entities or small incumbent LECs because  X4 !they are not "independently owned and operated."i Y yOn#'#X\  P6G;P#э 15 U.S.C.  632(a)(1).i For example, a PCS provider that is  !affiliated with an interexchange carrier having more than 1,500 employees would not meet the"B 0*%%ZZO"  !pdefinition of a small business. It seems reasonable to conclude, therefore, that fewer than 3,497  !telephone service firms are small entity telephone service firms or small incumbent LECs that may be affected by this Further NPRM.  X4  } 152.    Wireline Carriers and Service Providers. SBA has developed a definition of small  !entities for telephone communications companies other than radiotelephone (wireless) companies.  !cThe Census Bureau reports that, there were 2,321 such telephone companies in operation for at  Xa4 !/least one year at the end of 1992.aY {O'#X\  P6G;P#э 1992 Census, supra, at Firm Size1-123. According to SBA's definition, a small business telephone  XJ4 !company other than a radiotelephone company is one employing fewer than 1,500 persons.JZY yOU '#X\  P6G;P#э 13 C.F.R.  121.201, Standard Industrial Classification (SIC) Code 4812.  !All but 26 of the 2,321 nonradiotelephone companies listed by the Census Bureau were reported  !lto have fewer than 1,000 employees. Thus, even if all 26 of those companies had more than  !1,500 employees, there would still be 2,295 nonradiotelephone companies that might qualify as  !small entities or small incumbent LECs. Although it seems certain that some of these carriers  !are not independently owned and operated, we are unable at this time to estimate with greater  !precision the number of wireline carriers and service providers that would qualify as small  !business concerns under SBA's definition. Consequently, we estimate that there are fewer than  !2,295 small entity telephone communications companies other than radiotelephone companies that may be affected by the decisions and rules recommended for adoption in this NPRM.  XM4 } 153.    Local Exchange Carriers. Neither the Commission nor SBA has developed a  !definition of small providers of local exchange services (LECs). The closest applicable definition  !under SBA rules is for telephone communications companies other than radiotelephone (wireless)  !"companies. The most reliable source of information regarding the number of LECs nationwide  !of which we are aware appears to be the data that we collect annually in connection with the  !3Telecommunications Relay Service (TARS). According to our most recent data, 1,347 companies  X4 !Ereported that they were engaged in the provision of local exchange services.}\Y {O`'#X\  P6G;P#э Federal Communications Commission, CAB, Industry Analysis Division, Telecommunications Industry  {O*'Revenue: TARS Fund Worksheet Data, Tbl. 21 (Average Total Telecommunications Revenue Reported by Class  yO'of Carrier) (December,1996) ("TARS Worksheet"). } Although it  !gseems certain that some of these carriers are not independently owned and operated, or have more  !than 1,500 employees, we are unable at this time to estimate with greater precision the number  !of LECs that would qualify as small business concerns under SBA's definition. Consequently,  !cwe estimate that there are fewer than 1,347 small incumbent LECs that may be affected by the decisions and rules recommended for adoption in this NPRM. ";C0*%%ZZR"Ԍ X4 }v 154.    Interexchange Carriers. Neither the Commission nor SBA has developed a  !/definition of small entities specifically applicable to providers of interexchange services (IXCs).  !The closest applicable definition under SBA rules is for telephone communications companies  !Nother than radiotelephone (wireless) companies. The most reliable source of information  !regarding the number of IXCs nationwide of which we are aware appears to be the data that we  !collect annually in connection with TARS. According to our most recent data, 130 companies  Xx4 !reported that they were engaged in the provision of interexchange services.kxY yO'#X\  P6G;P#э TARS Worksheet.k Although it seems  !certain that some of these carriers are not independently owned and operated, or have more than  !l1,500 employees, we are unable at this time to estimate with greater precision the number of  !IXCs that would qualify as small business concerns under SBA's definition. Consequently, we  !estimate that there are fewer than 130 small entity IXCs that may be affected by the decisions and rules recommended for adoption in this NPRM.   X 4 } 155.    Competitive Access Providers. Neither the Commission nor SBA has developed  !a definition of small entities specifically applicable to providers of competitive access services  !R(CAPs). The closest applicable definition under SBA rules is for telephone communications  !companies other than radiotelephone (wireless) companies. The most reliable source of  !information regarding the number of CAPs nationwide of which we are aware appears to be the  !Idata that we collect annually in connection with the TARS. According to our most recent data,  XO4 !57 companies reported that they were engaged in the provision of competitive access services.}OXY yOX'#X\  P6G;P#э 13 C.F.R.  121.201, SIC 4813.}  !Although it seems certain that some of these carriers are not independently owned and operated,  !or have more than 1,500 employees, we are unable at this time to estimate with greater precision  !the number of CAPs that would qualify as small business concerns under SBA's definition.  !Consequently, we estimate that there are fewer than 57 small entity CAPs that may be affected by the decisions and rules recommended for adoption in this NPRM.  X4 } 156.     Operator Service Providers. Neither the Commission nor SBA has developed a  !definition of small entities specifically applicable to providers of operator services. The closest  !Rapplicable definition under SBA rules is for telephone communications companies other than  !8radiotelephone (wireless) companies. The most reliable source of information regarding the  !cnumber of operator service providers nationwide of which we are aware appears to be the data  !that we collect annually in connection with the TARS. According to our most recent data, 25  X&4 !}companies reported that they were engaged in the provision of operator services.Y&Y {O"'#X\  P6G;P#э Id.Y Although it  !seems certain that some of these companies are not independently owned and operated, or have  !_more than 1,500 employees, we are unable at this time to estimate with greater precision the"Dz0*%%ZZ"  !number of operator service providers that would qualify as small business concerns under SBA's  !pdefinition. Consequently, we estimate that there are fewer than 25 small entity operator service  !providers that may be affected by the decisions and rules recommended for adoption in this NPRM.  X4 } 157.     Wireless (Radiotelephone) Carriers. SBA has developed a definition of small  !entities for radiotelephone (wireless) companies. The Census Bureau reports that there were  Xa4 !+1,176 such companies in operation for at least one year at the end of 1992.} aY {O'#X\  P6G;P#э 1992 Census, supra, at Firm Size1-123.} According to  !SBA's definition, a small business radiotelephone company is one employing fewer than 1,500  X34 !}persons. 3ZY yO> '#X\  P6G;P#э 13 C.F.R.  121.201, Standard Industrial Classification (SIC) Code 4812. The Census Bureau also reported that 1,164 of those radiotelephone companies had  !yfewer than 1,000 employees. Thus, even if all of the remaining 12 companies had more than  !p1,500 employees, there would still be 1,164 radiotelephone companies that might qualify as small  !entities if they are independently owned are operated. Although it seems certain that some of  !Vthese carriers are not independently owned and operated, we are unable at this time to estimate  !with greater precision the number of radiotelephone carriers and service providers that would  !qualify as small business concerns under SBA's definition. Consequently, we estimate that there  !are fewer than 1,164 small entity radiotelephone companies that may be affected by the decisions and rules recommended for adoption in this NPRM.   XM4  } 158.     Cellular and Mobile Service Carriers: In an effort to further refine our calculation  !of the number of radiotelephone companies affected by the rules adopted herein, we consider the  !_categories of radiotelephone carriers, Cellular Service Carriers and Mobile Service Carriers.  !RNeither the Commission nor the SBA has developed a definition of small entities specifically  !applicable to Cellular Service Carriers and to Mobile Service Carriers. The closest applicable  !definition under SBA rules for both services is for telephone companies other than radiotelephone  !p(wireless) companies. The most reliable source of information regarding the number of Cellular  !<Service Carriers and Mobile Service Carriers nationwide of which we are aware appears to be  !the data that we collect annually in connection with the TARS. According to our most recent  !cdata, 792 companies reported that they are engaged in the provision of cellular services and 117  Xi4 !_companies reported that they are engaged in the provision of mobile services. iY yO '#X\  P6G;P#Ѝ TARS Worksheet, at Tbl. 1 (Number of Carriers Reporting by Type of Carrier and Type of Revenue). Although it  !gseems certain that some of these carriers are not independently owned and operated, or have more  !than 1,500 employees, we are unable at this time to estimate with greater precision the number  !of Cellular Service Carriers and Mobile Service Carriers that would qualify as small business  !concerns under SBA's definition. Consequently, we estimate that there are fewer than 792 small" Ez 0*%%ZZ "  !_entity Cellular Service Carriers and fewer than 138 small entity Mobile Service Carriers that might be affected by the actions and rules adopted in this NPRM.  X4 } 159.     Broadband PCS Licensees. The broadband PCS spectrum is divided into six  !frequency blocks designated A through F, and the Commission has held auctions for each block.  !The Commission defined "small entity" for Blocks C and F as an entity that has average gross  Xx4 !urevenues of less than $40 million in the three previous calendar years. ^xY {O'#X\  P6G;P#э See Amendment of Parts 20 and 24 of the Commission's Rules Broadband PCS Competitive Bidding  {O'and the Commercial Mobile Radio Service Spectrum Cap, Report and Order, FCC 96278, WT Docket No. 96 {O '59, paras. 5760 (June 24, 1996), 61 FR 33859 (July 1, 1996); see also 47 CFR  24.720(b). For Block F, an  !Eadditional classification for "very small business" was added, and is defined as an entity that,  !together with its affiliates, has average gross revenues of not more than $15 million for the  X34 !lpreceding three calendar years.m 3Y {O '#X\  P6G;P#э Id., at para. 60.m These regulations defining "small entity" in the context of  X 4 !broadband PCS auctions have been approved by SBA. Y {OM'#X\  P6G;P#э Implementation of Section 309(j) of the Communications Act Competitive Bidding, PP Docket No. 93253, Fifth Report and Order, 9 FCC Rcd 5532, 558184 (1994). No small businesses within the SBA !Rapproved definition bid successfully for licenses in Blocks A and B. There were 90 winning  !bidders that qualified as small entities in the Block C auctions. A total of 93 small and very  !Rsmall business bidders won approximately 40% of the 1,479 licenses for Blocks D, E, and F.  !However, licenses for Blocks C through F have not been awarded fully, therefore there are few,  !Nif any, small businesses currently providing PCS services. Based on this information, we  !"conclude that the number of small broadband PCS licenses will include the 90 winning C Block  !bidders and the 93 qualifying bidders in the D, E, and F blocks, for a total of 183 small PCS providers as defined by the SBA and the Commissioner's auction rules.  XM4  X64  }F 160.     Resellers. Neither the Commission nor SBA has developed a definition of small  !entities specifically applicable to resellers. The closest applicable definition under SBA rules is  !/for all telephone communications companies. The most reliable source of information regarding  !the number of resellers nationwide of which we are aware appears to be the data that we collect  !annually in connection with the TARS. According to our most recent data, 260 companies  X4 !reported that they were engaged in the resale of telephone services.Y {OP '#X\  P6G;P##X\  P6G;P#э Id. Although it seems certain  !Vthat some of these carriers are not independently owned and operated, or have more than 1,500  !Vemployees, we are unable at this time to estimate with greater precision the number of resellers  !that would qualify as small business concerns under SBA's definition. Consequently, we estimate  !3that there are fewer than 260 small entity resellers that may be affected by the decisions and rules recommended for adoption in this NPRM."RFl 0*%%ZZ"Ԍ X' }ԙ IV. Description of Projected Reporting, Recordkeeping and Other Compliance  X'Requirements:  X4 } 161.    The rules proposed in the NPRM require telecommunications carriers to establish  !policies and procedures governing the conduct of officers and employees who are engaged in  !surveillance activity. Those proposed rules require telecommunications carriers to maintain  !crecords of all interceptions of communications and call identification information. Further, those  !cproposed 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  !8procedures 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 certify that they observe procedures consistent with the security rules promulgated by the Commission.  X 4 } 162.     We tentatively conclude that a substantial number of telecommunications carriers,  !4who 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  XK4 ! protect themselves from suit by persons who claim they were the victims of illegal surveillance.KY yO'#X\  P6G;P##X\  P6G;P#э 18 U.S.C.  2520 provides for the recovery of civil damages by persons who endured illegal electronic surveillance.  !EBy providing general guidance regarding the conduct of carrier personnel and the content of  !precords in this Further 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  !Acontained in this Further NPRM, should be minimal. We seek comment on this tentative conclusion.  X' }E V. Significant Alternatives to Proposed Rules Which Minimize Significant Economic Impact on Small Entities and Accomplish Stated Objectives:  Xe4  XN4  }` 163.     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  !4smaller telecommunications carriers. The legislation, however, provides for Commission  !discretion to formulate compliance reporting requirements for telecommunications carriers that  !_favor smaller telecommunications carriers, and in the NPRM the Commission exercised that  !hdiscretion by proposing rules that allow smaller carriers the option to file a certification of"!G 0*%%ZZ? "  !compliance with the Commission instead of a statement of the policies, processes and procedures  X4they use to comply with the CALEA regulations.Y {Ob'#X\  P6G;P##X\  P6G;P#э Id.  X' } VI. Federal Rules that May Overlap, Duplicate, or Conflict with the Proposed Rules:  X4  Xv4  }` 164.     As we noted in Part I of this IRFA, supra, the need for the proposed regulations  !is mandated by Federal legislation. 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.   X ' D. Notice and Comment Provisions  X 4  } 165.    Pursuant to Sections 1.415 and 1.419 of the Commission's rules, 47 C.F.R.   X4 !1.415, 1.419, interested parties may file comments on before December 14, 1998 , and reply  X{4 !Vcomments on or before January 13, 1999 . Comments may be filed using the Commission's  Xd4 !/Electronic Comment Filing System (ECFS) or by filing paper copies. See Electronic Filing of  XO4Documents in Rulemaking Proceedings, 63 Fed. Reg. 24,121 (1998).  X#4  } 166.     Comments filed through the ECFS can be sent as an electronic file via the Internet  X 4 !/to . Generally, only one copy of an electronic submission  !must be filed. If multiple docket or rulemaking numbers appear in the caption of this proceeding,  !_however, commenters must transmit one electronic copy of the comments to each docket or  !rulemaking number referenced in the caption. In completing the transmittal screen, commenters  !should include their full name, Postal Service mailing address, and the applicable docket or  !Vrulemaking number. Parties may also submit an electronic comment by Internet email. To get  !filing instructions for email comments, commenters should send an email to ecfs@fcc.gov, and  !pshould include the following words in the body of the message, "get form  VI. APPENDIX OF COMMENTING PARTIES Đc  X4PartiesThatSubmittedCommentsRegardingStandardsIssuesinResponsetoApril20,1998  X4PublicNotice: AirTouch Communications, Inc. AT&T Corporation  !cAmerican for Tax Reform, Center for Technology Policy of the Free Congress Foundation, and Citizens for a Sound Economy Ameritech Operating Companies and Ameritech Mobile Communications, Inc.  !BellSouth Corporation, Inc., BellSouth Telecommunications, Inc., BellSouth Cellular Corp., BellSouth Personal Communications, Inc., and BellSouth Wireless Data, L,P. Cellular Telecommunications Industry Association Center for Democracy and Technology Department of Justice and Federal Bureau of Investigation  !Electronic Privacy Information Center, Electronic Frontier Foundation, and American Civil Liberties Union GTE New York City Police Department Nextel Communications, Inc. Personal Communications Industry Association PrimeCo Personal Communications, L.P.  !SBC Communications, Inc. on behalf of its affiliates Southwestern Bell Telephone Company,  !VPacific Bell, Nevada Bell, Southwestern Bell Wireless Inc., Southwestern Bell Mobile Systems, Inc., and Pacific Bell Mobile Services, Inc. Sprint Spectrum L.P. d/b/a Sprint PCS Telecommunications Industry Association United States Telephone Association US West, Inc.  XP4Parties That Submitted Reply Comments to Comments Regarding Standards Issues: AirTouch Communications, Inc. American Mobile Telecommunications Association AT&T Corporation Bell Emergis Intelligent Signalling Technologies Cellular Telecommunications Industry Association Center for Democracy and Technology Denver (CO) Police Department Department of Justice and Federal Bureau of Investigation Drug Enforcement Administration "j$J0*%%ZZ""Ԍ !Electronic Privacy Information Center, Electronic Frontier Foundation, and American Civil Liberties Union National Telephone Cooperative Association New Jersey State Police New York State Police Department Nextel Communications, Inc. Ocean County (NJ) Prosecutor's Office PrimeCo Personal Communications, L.P. Rural Cellular Association SBC Communications, Inc. Telecommunications Industry Association US West, Inc. Wisconsin Division of Narcotics Enforcement" K0*%%ZZ\ "  a4  @--  --@#|\  P6G; 5P#  a 4 Separate Statement of Commissioner Harold W. FurchtgottRoth   a4z  In re: Further Notice of Proposed Rulemaking  a(4 ' Communications Assistance for Law Enforcement Act   aF4 c By this Further Notice of Proposed Rulemaking, the Commission initiates a proceeding to resolve a dispute among industry, law enforcement, and privacy interests over what technical requirements are necessary for various carriers to meet the assistance capability requirements of 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.) ("CALEA"). I support the Further NPRM as a good first step to resolving this dispute. Herein, however, I express two concerns about our proposed approach and make a strong request for quantified cost, benefit, and timing information. My first concern is general. While trying to ensure (at considerable expense to taxpayers, consumers, and industry) that law enforcement agencies are able to obtain access to communications among people using common wireline, cellular, and PCS telecommunications services, we may be disregarding inexpensive and fairly obvious ways for malefactors to thwart our efforts by using other communications technologies or techniques. Although I believe that, because CALEA requires us to do so, we must ensure appropriate access to the common telecommunications services, I also believe that the practical limits on law enforcement's reach should temper our willingness to burden consumers and industry with significant discretionary expenses. My more specific concern goes to our tentative conclusion that location information about mobile wireless units is callidentifying information under CALEA. Section 102(2) of CALEA defines callidentifying information as "dialing or signaling information that identifies the origin, direction, destination, or termination" of each communication. 47 U.S.C. 1001(2). Because the words "origin," "destination," and "termination" usually denote, at least partly, location, I believe that callidentifying information, by the plain meaning of Section 102, includes location information about mobile wireless units. "r&L0*''ZZ%"Ԍ a4Some parties, however, say there is good reason to believe Congress  a 4intended a more limited meaning. See Center for Democracy and Technology, Petition for Rulemaking Under Sections 107 and 109 of the Communications Assistance for Law Enforcement Act (March 26, 1998). Accordingly, although I support the Commission's tentative conclusion based on what I believe to be the plain meaning of the law, I would welcome additional comment on whether, and on what basis, the language of Section 102(2) should be read narrowly. Finally, let me make a strong request for parties to submit quantified cost and timing information. In several places, CALEA makes explicit or implicit reference to cost issues. In Section 107(b), for example, the Commission is directed to establish technical requirements or standards that meet assistance capability requirements by "costeffective methods," and to "minimize the cost" of compliance on  a4residential ratepayers. Id. at 107(b)(1) and (3). CALEA also directs us to determine whether compliance with the capability requirements is "reasonably  a4achievable," id. at 109(b)(1), and, with respect to callidentifying information, to  a4determine what is "reasonably available," id. at 103(a)(2). In order to properly meet our responsibilities under these provisions of CALEA, I believe the Commission must understand the balance of costs and benefits including implementation timing issues of the choices before us. I have been disappointed by the level of specificity in the record to date. It does us little good to be told that the implementation of some technical feature would or would not be "difficult" or "expensive" or "take a long time." Reliance on such qualitative assessments make it nearly impossible for us to make reasoned decisions under CALEA. Thus, I request that all parties, when addressing issues of cost or what is "reasonably achievable" or "reasonably available," provide estimates, with as much specificity and quantitative information as possible, the costs, benefits, and the time necessary for industry to implement the technical requirements or standards in dispute.  aV"4si * * * * * * * Đc