[ 1 ] Communications Assistance for Law Enforcement Act, Pub. L. No. 103-414, 108 Stat. 4279 (1994) (codified as amended in 18 U.S.C. § 2522, and 47 U.S.C. §§ 229, 1001-1010.).
[ 2 ] AT&T Wireless Services, Inc., Lucent Technologies, Inc. and Ericsson, Inc. (AT&T) Joint Petition for Extension of Compliance Date, filed Mar. 30, 1998; PrimeCo Personal Communications, L.P. (PrimeCo), Petition for an Extension of Compliance Date, filed April 21, 1998; Powertel, Inc. (Powertel), Petition for an Extension of Compliance Date, filed April 23, 1998; United States Telephone Association (USTA), Petition for an Extension of Compliance Date, filed April 24, 1998; Ameritech Operating Companies and Ameritech Mobile Communications, Inc. (Ameritech), Petition for an Extension of Compliance Date, filed April 24, 1998; AirTouch Paging, Inc. (AirTouch Paging), Petition for an Extension of Compliance Date, filed May 4, 1998; AirTouch Communications Inc. and Motorola, Inc. (AirTouch), Joint Petition for an Extension of Compliance Date, filed May 5, 1998; SBC Communications, Inc. (SBC), Petition for Extension of Compliance Date, filed May 8, 1998; ICG Telecom Group, Inc. (ICG), Petition for Extension of and Comments, filed May 8, 1998; Centennial Cellular Corp. (Centennial), Petition for an Extension of Compliance Date, filed May 6, 1998; Comcast Cellular Communications, Inc. (Comcast Cellular), Petition for Extension of Compliance Date, filed May 29, 1998; BellSouth Corporation, BellSouth Telecommunications, Inc., BellSouth Cellular Corp., BellSouth Personal Communications, Inc. and BellSouth Wireless Data, L.P. (BellSouth), Combined Comments and Petition for Extension of Time, filed May 8, 1998; CommNet Cellular Inc. (CommNet), Petition for Extension of Compliance Date, filed April 30, 1998; Metrocall, Inc. (Metrocall), Petition for Extension of Compliance Date, filed May 21, 1998; United States Cellular Corporation (USCC), Comments and Petition for Extension of Compliance Date, filed May 8, 1998, PageMart Wireless, Inc. (PageMart), Petition for Extension of CALEA Compliance Date, filed June 10, 1998; Ardis Company, Conxus Network, Inc., Metrocall, Inc., MobileMedia Communications, Inc., Motorola, Inc., PageMart Wireless, Inc., Preferred Networks, Inc., RAM Technologies, Inc., Real Time Strategies, Inc., and TekNow, Inc. (Ardis, et al.), Joint Petition for Extension of Compliance Date, filed June 10, 1998; Skytel Communications, Inc. (Skytel), Request for Extension of Time to Comply with the Assistance Capability Requirements of Section 103 of CALEA, filed July 24, 1998; Redcom Laboratories, Inc. (Redcom), Petition for Extension of CALEA Compliance Date, filed June 1, 1998; Joint Petition For an Extension of the CALEA Assistance Capability Compliance Date of Iridium United States, L.P. and Motorola, Inc. (Iridium), filed June 30, 1998; 360º Communications Company (360º) Comments at 8 n.15, filed May 8, 1998; Centurytel Wireless Communications, Inc. (Centurytel) Comments at 8 n.27, filed May 8, 1998; Paging Network, Inc. (PageNet), Petition for Extension of Compliance Date, filed June 8, 1998.
[ 3 ] "In the Matter of Communications Assistance for Law Enforcement Act, CC Docket No. 97-213," Public Notice, DA 98-762 (rel. Apr. 20, 1998) (April 20 Public Notice); see also Appendix, listing comments received in response to April 20 Public Notice.
[ 4 ] 47 U.S.C. §§ 1001 note(b), 1006(c)(2).
[ 5 ] See 47 U.S.C. § 1006(c)(1)-(4).
[ 6 ] Id. We note that a carrier is deemed to be in compliance with section 103 of CALEA as to its "old" equipment, facilities and services -- i.e. those installed or deployed on or 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. 47 U.S.C. § 1008(a), (d).
[ 7 ] 140 Cong. Rec. H-10779 (daily ed. October 7, 1994) (statement of Rep. Hyde).
[ 8 ] 47 U.S.C. § 1002(a)(1)-(4).
[ 9 ] 47 U.S.C. § 1001 note(b).
[ 10 ] See 47 U.S.C. § 1005(a). Section 104 of CALEA also requires carriers to meet capacity requirements specified by the Attorney General. These requirements identify the actual number of and maximum capacity required to accommodate all the simultaneous interceptions, pen registers and trap and trace devices the Attorney General estimates will be needed to conduct authorized surveillance. 47 U.S.C. § 1003(a). CALEA gives carriers until October 25, 1998 or three years from the publication of the capacity requirements by the Attorney General, whichever is longer, to comply with the section 104 requirements. 47 U.S.C. § 1003(b).
[ 11 ] See 47 U.S.C. § 1005(b).
[ 12 ] See 47 U.S.C. § 1006(a)(1).
[ 13 ] 47 U.S.C § 1006(a)(2). Manufacturers and providers of telecommunications support services are subject to section 106 and not section 103. 47 U.S.C. § 1005.
[ 14 ] 47 U.S.C § 1006(a)(3)(B).
[ 15 ] 47 U.S.C. § 1006(b).
[ 16 ] 47 U.S.C. § 1006(b)(5). This section requires the Commission to establish, by rule, technical requirements or standards that also (1) meet the assistance capability requirements of section 103 by cost-effective methods; (2) protect the privacy and security of communications not authorized to be intercepted; (3) minimize the cost of such compliance on residential ratepayers; and (4) serve the policy of the United States to encourage the provision of new technologies and services to the public. Id. at (b)(1)-(4).
[ 17 ] See 47 U.S.C. § 1006(c)(1).
[ 18 ] 47 U.S.C. §§§ 154(i), 154(j), 229(a). See note 2 supra.
[ 19 ] See Communications Assistance for Law Enforcement, Notice of Proposed Rulemaking, CC Docket No. 97-213, FCC 97-356 (Oct. 10, 1997) (CALEA NPRM). Comments were due on December 12, 1997, and Reply Comments were due on February 11, 1998.
[ 20 ] CALEA NPRM at ¶ 50. CTIA had filed a petition for rulemaking on July 16, 1997 recommending that the Commission adopt industry capability standards and allow a two year implementation period from the adoption of this standard. Because our intention in the NPRM was to focus on obligations assigned specifically to the Commission by CALEA, we concluded that we would address CTIA's petition, including CTIA's request for an extension of the implementation period, separately. CALEA NPRM at ¶ 44.
[ 21 ] Id. The CALEA NPRM originally indicated that such petitions would be analyzed under the criteria specified in section 109(b)(1). However, as detailed below, upon further review, we conclude that consideration of an extension under section 107(c) is based on one criteria--that is, whether "compliance with the assistance capability requirements under section 103 is not reasonably achievable through application of technology available within the compliance period." 47 U.S.C. §1006(c)(2). We also note that section 109(b)(1) and section 107(c) serve different purposes. Section 107(c) concerns extensions of the compliance deadline, while section 109(b) concerns the Attorney General's financial liability for the cost of modifications made to those portions of a carrier's network that were "installed or deployed after January 1, 1995." 47 U.S.C. §§1006(c), 1008(b)(1). Accordingly, the section 109(b)(1) criteria will not be evaluated here. Commenters have agreed with this conclusion. See e.g., U.S. West Comments to NPRM at 38 n.66; AT&T Comments to NPRM at 23-27; FBI Reply Comments to NPRM at 14-15; Paging Network Comments at 4.
[ 22 ] CALEA NPRM at ¶ 44.
[ 23 ] See, e.g., American Mobile Telephone Association, Inc. (AMTA) Comments to NPRM at 8; BellSouth Corporation, BellSouth Telecommunications, Inc., BellSouth Cellular Corp., BellSouth Personal Communications, Inc. and BellSouth Wireless Data, L.P. (BellSouth) Comments to NPRM at 19; Motorola, Inc. (Motorola) Comments to NPRM at 11; Paging Network, Inc. (PageNet) Comments to NPRM at 13-14; Personal Communications Industry Association (PCIA) Comments to NPRM at 3-4; PrimeCo Personal Communications, L.P. (Prime Co) Comments to NPRM at 5-6; AirTouch Reply Comments to NPRM at 9-12; AT&T Corporation (AT&T) Reply Comments to NPRM at 13-14.
[ 24 ] CALEA Specification for Traditional Paging, PCIA Technical Committee, CALEA Subcommittee, released May 4, 1998.
[ 25 ] Interim Standard, Lawfully Authorized Electronic Surveillance, J-STD-025, Telecommunications Industry Association Standards Committee, Subcommittee TR45.2, adopted December 8, 1997 (J-STD-025).
[ 26 ] Id. at 2.
[ 27 ] See Center for Democracy and Technology (CDT), Petition for Rulemaking Under Sections 107 and 109 of the Communications Assistance for Law Enforcement Act, filed March 26, 1998 (CDT Petition); Department of Justice and Federal Bureau of Investigations (FBI), Joint Petition for Expedited Rulemaking, filed March 27, 1998 (FBI Petition).
[ 28 ] We have received four petitions for rulemaking requesting that the Commission resolve the dispute as to whether the interim industry standard is overinclusive or underinclusive. CDT Petition; FBI Petition; Telecommunications Industry Association (TIA), Petition for Rulemaking, filed April 2, 1998 (TIA Petition); Cellular Telecommunications Industry Association (CTIA), Petition for Rulemaking, filed July 16, 1997 (CTIA Petition). See also note 116 infra.
[ 29 ] AT&T Petition.
[ 30 ] April 20 Public Notice.
[ 31 ] Id. at 4.
[ 32 ] Id.
[ 33 ] Id. In the April 20 Public Notice, we requested comment on whether the capabilities discussed in the CDT and FBI petitions for rulemaking fall within the scope of CALEA and whether the Commission should grant FBI's motion to dismiss CTIA's Petition for Rulemaking as moot in light of the adoption of interim standards. Id. We established different comment dates for these issues and will address them in a separate order. Comments were due on May 20, 1998, and reply comments were due on June 5, 1998. We also note that the Commission has held several extensive meetings with the DOJ and FBI staffs regarding CALEA. See, e.g., Letter from Daniel Kaplan, Department of Justice, to Magalie R. Salas, Secretary, Federal Communications Commission, dated June 4, 1998 (FBI June 4 ex parte); Letter from H. Michael Warren, Department of Justice/Federal Bureau of Investigation, to Magalie R. Salas, Secretary, Federal Communications Commission, dated June 29, 1998 (FBI June 29 ex parte); Letter from David Yarbrough, Department of Justice/Federal Bureau of Investigation, to Magalie R. Salas, Secretary, Federal Communications Commission, dated July 1, 1998 (FBI July 1, 1998 ex parte).
[ 34 ] See note 2 supra.
[ 35 ] Id.
[ 36 ] See, e.g., BellSouth Combined Comments and Petition for Extension of Time; ICG Petition for Extension and Comments; SBC Petition for Extension of Compliance Date; USCC Comments and Petition for Extension of Compliance Date; CenturyTel Comments at 8 n. 27; 360º Comments at 8 n.15. Comments were submitted by 36 parties. Reply comments were submitted by 16 parties.
[ 37 ] See 47 U.S.C. § 1006(c)(2).
[ 38 ] See DOJ/FBI Joint Comments (FBI Comments) in response to the April 20 Public Notice; DOJ/FBI Joint Reply Comments (FBI Reply Comments) in response to the April 20 Public Notice. See also infra, ¶¶ 19-21, 39.
[ 39 ] See 47 U.S.C. § 1002. See also ALLTEL Communications, Inc. (ALLTEL) Comments at 1-3; Aliant Communications (Aliant) Comments at 3; AT&T Corporation, for itself and AT&T Wireless Services Inc. (AWS) collectively (AT&T) Comments at 2; AirTouch Communications, Inc. (AirTouch) Comments at 2; Ameritech Operating Companies and Ameritech Mobile Communications, Inc. (collectively Ameritech) Comments at 9-10; Association for Local Telecommunications Services (ALTS) Comments at 2; Cellular Telecommunications Industry Association (CTIA) Comments at 2, 16; Centennial Cellular Corp. (Centennial) Comments at 1-2; Omnipoint Communications, Inc. (Omnipoint) Comments at 1-2; Paging Network, Inc. (PageNet) Comments at 5; Powertel, Inc. (Powertel) Comments at 2; PrimeCo Personal Communications, L.P. (PrimeCo) Comments at 1, 5-7; United States Telephone Association (USTA) Comments at 6; 360º Communications Company (360º) Comments at 1; ICG Telecom Group, Inc. (ICG) Comments and Petition for Extension at 5; Sprint Spectrum L.P. d/b/a Sprint PCS (Sprint PCS) Comments at 3; Center for Democracy and Technology (CDT) Comments at 5; US West, Inc. (US West) Comments at 13-15; Electronic Privacy Information Center, the Electronic Frontier Foundation, and American Civil Liberties Union filing jointly (EPIC) Comments at 5; Bell Atlantic Mobile, Inc. (BAM) Comments at 1; Organization for the Promotion and Advancement of Small Telecommunications Companies (OPASTCO) Comments at 2-6; Northern Telecom, Inc. (Nortel) Comments at 1-2; Telecommunications Industry Association (TIA) Comments at 9; CenturyTel Wireless, Inc. (CenturyTel) Comments at 4-7; BellSouth Corporation, BellSouth Telecommunications, Inc., BellSouth Cellular Corp., BellSouth Personal Communications Inc. and BellSouth Wireless Data, L.P. (BellSouth) Comments at 4; Personal Communications Industry Association (PCIA) Comments at 11; Nextel Communications, Inc. (Nextel) Comments at 1; Rural Cellular Association (RCA) Comments at 5-6; Liberty Cellular, Inc. (Liberty) Comments at 3-5; Southern Communications Services, Inc. (Southern) Comments at 2.
[ 40 ] It is important to make clear the distinction between technology and equipment that is "CALEA-compliant" and equipment that is compliant with TIA's interim standard (J-STD-025). The term CALEA-compliant technology refers to any technology that could be used to meet the assistance capability requirements of section 103 of CALEA--whether it adheres to the interim standard or not. Technology solutions based on the interim standard are thus just one way for a carrier to comply with CALEA's requirements.
[ 41 ] AT&T Comments at 2; Nortel Comments at 1; BellSouth Comments at 6 (stating that switch manufacturers and other manufacturers maintain that they are unable to manufacture and implement CALEA-compliant technology by October 25, 1998); CenturyTel Comments at 5 (explaining that it uses Nortel switches and that Nortel does not expect to begin full commercial deployment of compliant equipment until September of 2000); RCA Comments at 5 (stating that carriers cannot meet CALEA requirements if equipment necessary to implement those upgrades is not readily available); Ameritech Comments at 5 (stating that it is not aware of one switch manufacturer that can provide a CALEA capability solution by the 1998 compliance date); PrimeCo Comments at 3; Aliant Comments at 3 (stating that CALEA compliant technology will not be available by October 1998); BellSouth Comments at 6 (neither switch manufacturers nor other manufacturers currently have the technology available to meet CALEA requirements); PCIA Comments at 14; Southern Comments at 4; ALTS Comments at 2 (asserting that the current lack of CALEA-compliant technology merits a deferral of the current compliance date); Liberty Comments at 4 (stating that the hardware and software necessary to comply with the capacity requirements are not commercially available); Nextel Comments at 2; TIA Comments at 10-11; OPASTCO Comments at 4; BAM Comments at 3 (explaining that telecommunications carriers cannot deploy equipment that does not yet exist); ACLU Comments at 4; CDT Comments at 5; Sprint PCS Comments at 2; Centennial Comments at 1-2; AirTouch Comments at 7; USTA Comments at 3. See also Bell Emergis Comments at 4.
[ 42 ] See FBI Reply Comments at 2 (stating that the comments are devoid of direct evidence showing that carriers and manufacturers are incapable of achieving compliance with section 103 even in light of the undisputed availability of J-STD-025 as a safe harbor, and it is possible that many carriers will be able to comply in accordance with these safe harbor standards quite soon).
[ 43 ] 47 U.S.C. § 1006(c)(2).
[ 44 ] AT&T Comments at 5.
[ 45 ] USTA Comments at 3.
[ 46 ] CTIA Comments at 1.
[ 47 ] Omnipoint Comments at 3- 4; see also PCIA Comments at 7; RCA Comments at 4-5; Nortel Comments at 4-5; Southern Comments at 5; BellSouth Reply Comments at 7-8; Nextel Reply Comments at 7.
[ 48 ] CenturyTel Comments at 6 (citing TIA Petition at 4).
[ 49 ] 360º Comments at 5.
[ 50 ] Ameritech Comments at 4-5 (citing Communications Assistance for Law Enforcement Act (CALEA), Implementation Report, Federal Bureau of Investigations of the Department of Justice, January 26, 1998).
[ 51 ] Nortel Comments at 1.
[ 52 ] Id. at 4; see also CenturyTel Comments at 4; TIA Comments at 10. The Attorney General is required under CALEA to provide carriers with information they need to be capable of accommodating the actual number of simultaneous interceptions law enforcement might conduct as of October 25, 1998, and to size and design their networks to accommodate the maximum number of simultaneous interceptions that law enforcement might conduct after October 25, 1998. See 47 U.S.C. § 1003.
[ 53 ] See AT&T Petition at 7. Several petitioners also note that they rely on Lucent and/or Ericsson for their telecommunications equipment and have been informed by these manufacturers that no solution will be available before CALEA's compliance date. See, e.g., Ameritech Comments at 6; Bell Atlantic Comments at 3-4; BellSouth Comments at 11; Centennial Petition at 6-7; ICG Telecom Group Comments at 4; PrimeCo Comments at 3; and U S West Comments at 8, 10.
[ 54 ] See AT&T Petition at 7.
[ 55 ] Bell Emergis Comments at 2.
[ 56 ] Id.
[ 57 ] Id. at 3.
[ 58 ] Id. at 4. Another manufacturer, ADC, is also developing an "out-of-switch" approach to CALEA compliance. Letter from Catherine Wang, Swidler & Berlin on behalf of ADC Telecommunications, Inc., to Magalie R. Salas, Secretary, Federal Communications Commission, dated June 26, 1998 (ADC June 26 ex parte); see also Letter from David Fisher, ADC Telecommunications, Inc., to Magalie Salas, Secretary, Federal Communications Commission, dated July 6, 1998 (ADC July 6 ex parte). The ADC system takes surveillance information from the carrier's switch, and delivers it to the law enforcement monitoring center. Id. Both these solutions differ from the approach taken by switch vendors such as Lucent, Nortel, and Motorola in that they do not place all CALEA functionality in the switches' software.
[ 59 ] FBI Comments at 14.
[ 60 ] Id. at 15.
[ 61 ] Id. at 19.
[ 62 ] See, e.g., AirTouch Reply Comments at 8 (citing CTIA Comments at 2); BellSouth Reply Comments at 2; CDT Reply Comments at 6; Ameritech Reply Comments at 4-5.
[ 63 ] Ameritech Reply Comments at 5; see also CDT Reply Comments at 6; TIA Reply Comments at 11.
[ 64 ] CTIA Comments at 2.
[ 65 ] FBI Comments at 17.
[ 66 ] Id. In its initial comments, the FBI provided a sample forbearance agreement, which stated that the capability requirements include functions defined in standard J-STD-025 and additional "punch list" capabilities. FBI Comments, Attachment B. The "punch list" refers to the FBI-proposed inclusion of additional capabilities within the J-STD-025 standard. The additional capabilities the FBI seeks to include are: (1) Content of conference calls; (2) Party hold, party join, party drop; (3) Access to subject-initiated dialing and signaling; (4) Notification message (in-band and out-of-band signaling); (5) Timing to correlate call data and call content; (6) Surveillance status message; (7) Feature status message; (8) Continuity check; (9) Standardized delivery interface; (10) Post cut-through dialing and signaling; and (11) Separated delivery. See FBI Petition at 25, and Appendix C; see also FBI Comments, Attachment A. However, in its reply comments, the FBI states that, pending the Commission's issuance of a final rule, it will not require manufacturers and carriers to provide the punch list capabilities as a condition to being offered enforcement forbearance while J-STD-025 is still in effect as a safe harbor. FBI Reply Comments at 11.
[ 67 ] FBI Comments at 17.
[ 68 ] Id. at 19.
[ 69 ] See, e.g., AirTouch Reply Comments at 6; BellSouth Reply Comments at 5-6; AT&T Reply Comments at 4; CDT Reply Comments at 3; Ameritech Reply Comments at 5; SBC Reply Comments at 6; USTA Reply Comments at 4; US West Reply Comments at 5; GTE Reply Comments at 6; AirTouch Reply Comments at 6; PrimeCo Reply Comments at 5.
[ 70 ] See SBC Reply Comments at 6; see also USTA Reply Comments at 4; US West Reply Comments at 5.
[ 71 ] SBC Reply Comments at 6; see also USTA Reply Comments at 4; US West Reply Comments at 5.
[ 72 ] GTE Reply Comments at 6.
[ 73 ] See AirTouch Reply Comments at 6 (citing FBI Comments at 17 n.3); see also PrimeCo Reply Comments at 5.
[ 74 ] AirTouch Reply Comments at 6. AirTouch believes that, as part of its forbearance agreement procedure, the FBI is attempting to convince manufacturers to provide capabilities which carriers do not agree are required by CALEA, thereby bypassing the congressional determination that ultimate control over the scope of CALEA rests in the Commission. Id. at 6-7 n.23; see also CDT Reply Comments at 4; Ameritech Reply Comments at 5; PrimeCo Reply Comments at 7; US West Reply Comments at 5.
[ 75 ] AirTouch Reply Comments at 7 (citing H. Rep. at 14, 20, and 27-28 (1994)). See also AT&T Reply Comments at 4 (citing H. Rep. No. 103-837 at 19, reprinted in 1994 U.S.C.C.A.N. 3489, 3507 (stating that "[Section 107(b)] is also intended to add openness and accountability to the process of finding solutions to intercept problems. Any FCC decision on a standard for compliance with this bill must be made publicly.").
[ 76 ] See 47 U.S.C. § 1006(c)(2).
[ 77 ] See 47 U.S.C. § 1006(c)(1)-(4).
[ 78 ] Bell Emergis Comments at 4. It is also important to note that the Bell Emergis solution, as pointed out by the FBI in its Petition for Rulemaking, will not work with "older" (analog, electro-mechanical) switching systems. FBI/DOJ Petition at 11 (stating that ". . . the Bell Emergis solution would operate . . . for approximately 90% of the access lines nationwide.").
[ 79 ] ADC July 6 ex parte.
[ 80 ] The Bell Emergis solution is still being tested by the FBI, and the ADC technology has not yet been tested. Despite significant industry interest in both potential solutions, neither, to our knowledge, has been fully tested by a telecommunications carrier.
[ 81 ] But see para. 46 infra.
[ 82 ] See 47 U.S.C. § 1006(c)(2).
[ 83 ] See, e.g., AirTouch Reply Comments at 8 (citing CTIA Comments at 2); BellSouth Reply Comments at 2; CDT Reply Comments at 6; Ameritech Reply Comments at 4-5.
[ 84 ] Id. CDT points out that, when the numbers of law enforcement wiretaps and national security wiretaps conducted during 1997 are combined, the number of wiretaps authorized during 1997 are at least 20% higher than those authorized in 1994. CDT Reply Comments at 6. CDT contends that these statistics contradict the FBI's claim that new technologies are interfering with surveillance. Id. TIA also states, that in 1997, federal and state courts "granted a record 1,186 Title III wiretap orders, permitting law enforcement agents to transparently intercept approximately two million conversations." TIA Reply Comments at 11 (citing to Administrative Office of the United States Courts, Annual Report of the Director of the Administrative Office of the United States Courts on Applications for Orders Authorizing or Approving the Interception of Wire, Oral, or Electronic Communications -- 1997, released in April, 1998.).
[ 85 ] See PrimeCo Reply Comments at 5-6 (citing FBI Comments at 17 n.3); Airtouch Reply Comments at 6.
[ 86 ] See FBI Comments at 17-19. But see CDT Reply Comments at 4-5 "[t]he government's attempt to use its enforcement authority under section 108, not only to extend the deadline for compliance but as a lever over what is within and beyond the scope of CALEA, completely undermines the Act's carefully crafted balance among the roles of industry, law enforcement, the Commission, the courts, and the public."
[ 87 ] CALEA expressly gives authority to extend the deadline solely to the Commission based on the specific criteria outlined section 107(c) of the Act. 47 U.S.C. § 1006(c). CTIA suggests that if the Commission allowed the use of forbearance agreements to extend the compliance deadline the "DOJ would use the promise of an extension to extract punch list concessions thereby transferring the section 107 process from the FCC, as Congress intended, to the FBI." CTIA Reply Comments at 15.
[ 88 ] The Department of Justice and the FBI have requested that the Commission not stay the interim standard during consideration of its section 107(b) expedited petition for rulemaking. See FBI Petition at 67. We note that the majority of commenters strongly oppose this suggestion. See, e.g., AT&T Comments at 8; CTIA Comments at 10-11; US West Comments at 14; BellSouth Reply Comments at 8. As explained in paras. 5 and 37, we emphasize that we are not reaching any conclusions with respect to the interim standard in this Memorandum Opinion and Order. We will consider this issue in our disposition of the 107(b) petitions for rulemaking.
[ 89 ] PCIA Comments at 14; see also Ameritech Comments at 2 (stating that the Commission has the authority for administrative efficiency to recognize that all telecommunications carriers are similarly situated, and thus equally deserving of an extension of time); ALLTEL Comments at 1-2; AT&T Comments at 2; CTIA Comments at 2; Omnipoint Comments at 4-5; PageNet Comments at 3-4; Powertel Comments at 3; PrimeCo Comments at 2-3; USTA Comments at 5; 360º Comments at 1; ICG Comments at 5; Sprint PCS Comments at 3; CDT Comments at 1-2; US West Comments at 1-2; BAM Comments at 3; OPASTCO Comments at 2-4; Airtouch Comments at 2; Centennial Comments at 4; Nortel Comments at 1-2; TIA Comments at 13; CenturyTel Comments at 4; BellSouth Comments at 4; Nextel Comments at 1; RCA Comments at 6; Aliant Comments at 3; Southern Comments at 1; SBC Comments at 1-2; AirTouch Reply Comments at 9; BellSouth Reply Comments at 1; Ameritech Reply Comments at 1-2; Nextel Reply Comments at 2.
[ 90 ] 47 U.S.C. § 1006(c)(2).
[ 91 ] AT&T Comments at 5; PageNet Comments at 3; Powertel Comments at 3-6; TIA Comments at 5; CenturyTel Comments at 2; Nextel Comments at 1; Ameritech Comments at 4, n.4 (stating that nothing in the language of section 107 prohibits the Commission from granting a blanket extension of time and that, although the language is written in the singular, the Commission has the authority to recognize that the information applies to all carriers equally); ALTS Comments at 1; USCC Comments at 1; Centennial Comments at 1; BAM Comments at 1; ACLU Comments at 1, Sprint PCS Comments at 1; US West Comments at 1; CDT Comments at 1; BellSouth Comments at 3 (agreeing with Ameritech that nothing in section 107 prohibits the Commission from granting a blanket extension); Ameritech Reply Comments at 3; Nextel Reply Comments at 4.
[ 92 ] AT&T Comments at 6.
[ 93 ] FBI Comments at 11-13.
[ 94 ] FBI Comments generally.
[ 95 ] Id. at 16.
[ 96 ] Id. at 12-13 (emphasis in original).
[ 97 ] See generally id. at 9-10.
[ 98 ] Id. at 13 (citing H.R. REP. NO. 103-827, pt. 1, at 18-19 (1994), reprinted in 1994 U.S.C.C.A.N. 3489, 3498-99.).
[ 99 ] Id. at 11.
[ 100 ] See Ameritech Comments at 4 n.4 (stating that nothing in the language of section 107 prohibits the Commission from granting a blanket extension of time and that, although the language is written in the singular, the Commission has the authority to recognize that the information applies to all carriers equally); BellSouth Reply Comments at 3 (agreeing with Ameritech that nothing in section 107 prohibits the Commission from granting a blanket extension).
[ 101 ] The United States Court of Appeals for the District of Columbia Circuit relied on similar reasoning in one of its recent decisions affirming an agency's promulgation of a "blanket" regulation. See Sweet Home Chapter of Communities For a Great Oregon v. Babbitt, 1 F.3d 1 (1993), reh'g granted in part on different grounds, 17 F.3d 1463 (D.C. Cir. 1994), rev'd on different grounds, 515 U.S. 687 (1995) (Sweet Home). In that case, the Fish and Wildlife Service issued a regulation that declared all "threatened" species entitled to the same protection against "takings" as "endangered" species, over the objection of parties claiming that the Service could only issue this type of regulation for one species at a time. The Court of Appeals affirmed the blanket regulation in part because the statutory provision granting the Fish and Wildlife Service the authority to issue such regulations, even though phrased in the singular, "simply [did] not speak directly to the question of whether the [Service] must promulgate protection species-by-species or may extend such protection in a single rulemaking." Id. at 7.
[ 102 ] See Chevron U.S.A., Inc. v. Natural Resources Defense Counsel, 467 U.S. 837, 842-843 (1984); see also INS v. Cardoza-Fonseca, 480 U.S. 421, 448 (1987) (citations omitted) ("In [the] process of filling any gap left, implicitly or explicitly, by Congress, the courts must respect the interpretation of the agency to which Congress has delegated the responsibility for administering the statutory program.").
[ 103 ] See, e.g., AT&T Comments at 5-6, 9 ("The Commission will be inundated with petitions and carriers and their vendors will be put to a substantial and unnecessary burden in the preparation and submission of requests."); Omnipoint Comments at 3-4 (stating that "carriers may be subject to a fine of $10,000 per switch for every day of non-compliance unless an extension is granted" and that "such a comprehensive approach will conserve the Commission's resources and will prevent every carrier in the United States from filing an individual extension request in order to protect itself from potential liability."); Powertel Comments at 2, 6; PrimeCo Comments at 5; USTA Comments at 5; 360º Comments at 7; ICG Petition at 5; CTIA Comments at 9 ("Some carriers may opt for non-standard solutions to guard against possible enforcement actions under section 108"); Omnipoint Comments at 3.
[ 104 ] See also, Letter from Henry J. Hyde and John Conyers, Members, U.S. House of Representatives, to William E. Kennard, dated July 24, 1998 at 1 (urging the Commission to grant an extension); Letter from Patrick J. Leahy, Senator, United States Senate, to William E. Kennard, Chairman, Federal Communications Commission, dated June 26, 1998 at 1.
[ 105 ] 1 U.S.C. §1. See also First National Bank in St. Louis v. State of Missouri, 263 U.S. 640, 647 (1924); Toy Manufacturers of America, Inc. v. Consumer Product Safety Comm'n, 630 F.2d 70, 74 (2d Cir. 1980) (Toy Manuf.) (ascertaining whether the "typical rule of statutory construction set forth in 1 U.S.C. §1 would be inappropriate" by examining the "general thrust" of the statute).
[ 106 ] 47 U.S.C. §1001 note(b) ("Sections 103 and 105 of this title shall take effect on the date that is 4 years after the date of the enactment of this Act.").
[ 107 ] In this regard, our decision today is similar to the decision of the Consumer Product Safety Commission to require testing for all toys intended for children under the age of three, over the objection of parties who insisted that the statute, which used the singular, required the Commission to specify toys for testing on an individual basis. See Toy Manuf., 630 F.2d 70. The Second Circuit, in reviewing the Commission's regulation, concluded that a blanket approach was consistent with Congressional intent under 1 U.S.C. §1, noting that "identification of the hazard that is the concern of the Small Parts Regulation (i.e., small parts) appears well suited to a general prescriptive approach employing carefully defined, objective, and standardized testing procedures." Id. at 74. Because section 107(c)(2) involves the same inquiry for all carriers, it is equally well suited to "a general prescriptive approach" and is equally consistent with 1 U.S.C. §1. Accord Sweet Home, 1 F.3d at 5-7 (rejecting argument that Congress' use of singular prevented a blanket regulation, relying in part upon 1 U.S.C. §1).
[ 108 ] See, e.g., CTIA Comments at 13; 360º Comments at 9-10; BellSouth Reply Comments at 4; AT&T Reply Comments at 5; PrimeCo Comments at 6 n.19.
[ 109 ] CTIA Comments at 13; see also 360º Comments at 9-10; BellSouth Reply Comments at 4; AT&T Reply Comments at 5.
[ 110 ] CTIA Comments at 14.
[ 111 ] Id.
[ 112 ] PrimeCo Comments at 6 n.19.
[ 113 ] FBI Comments at 12.
[ 114 ] Id.
[ 115 ] See 47 U.S.C. § 1006(b)(5). Thus, whereas section 107(b)(5) pertains to the grant of an extension of time where the Commission becomes involved in setting a standard for the implementation of section 103, section 107(c) provides the Commission with the authority to grant an extension independent of any standard setting process.
[ 116 ] We note that only certain portions of the interim standard have been challenged. Accordingly, the contested technical standards which will be resolved by the Commission's section 107(b) rulemaking include the issues raised by the Center for Democracy and Technology as well as the contentions of the FBI. Specifically, CDT challenges that the interim industry standard goes too far in enhancing location tracking capabilities and failing to protect the privacy of packet switched communications that the government is not authorized to intercept. CDT Petition at 7, 10. The FBI, on the other hand, believes the standard is underinclusive and seeks to implement the so called "punch list" items, which include: (1) Content of conference calls; (2) Party hold, party join, party drop; (3) Access to subject-initiated dialing and signaling; (4) Notification message (in-band and out-of-band signaling); (5) Timing to correlate call data and call content; (6) Surveillance status message; (7) Feature status message; (8) Continuity check; (9) Standardized delivery interface; (10) Post cut-through dialing and signaling; and (11) Separated delivery. See FBI Petition at 25, and Appendix C; see also FBI Comments, Attachment A.
[ 117 ] See, e.g., AT&T Comments at 7 n.22; TIA Comments at 5 n.18; Nextel Reply Comments at 4. See also Letter from Pamela J. Riley, AirTouch Communications, Inc., to Magalie R. Salas, Secretary, Federal Communications Commission, dated June 18, 1998 at 5-6 (AirTouch June 18 ex parte).
[ 118 ] See 47 U.S.C. § 154(i); see also AirTouch June 18 ex parte at 5-6.
[ 119 ] See 47 U.S.C. § 154(j).
[ 120 ] See 108 Stat. 4292-93.
[ 121 ] See 47 U.S.C. § 229(a).
[ 122 ] We note that the FBI made this argument with regard to the Commission's authority to act under section 107(b) of CALEA. See FBI Petition at 24, ¶ 41.
[ 123 ] See, e.g., AT&T Comments at 7 n.22; TIA Comments at 5 n.18; Nextel Reply Comments at 4.
[ 124 ] FBI Comments at 13.
[ 125 ] To the extent that rulemaking authority might be required, however, we do believe that section 229(a) is appropriate authority for our action and that "good" cause would exist for dispensing with notice and comment procedures. Given that the factual basis for our extension Memorandum Opinion and Order applies equally to all affected carriers, and we have received extensive comment on these issues, public notice and comment procedures would be unnecessary and contrary to the public interest. See 5 U.S.C. § 553(b)(3)(B).
[ 126 ] 47 U.S.C. § 154(i).
[ 127 ]&nbs