[Federal Register Volume 66, Number 87 (Friday, May 4, 2001)]
[Rules and Regulations]
[Pages 22446-22448]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-11168]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CC Docket No. 97-213; FCC 01-126]


Communications Assistance for Law Enforcement Act

AGENCY: Federal Communications Commission.

ACTION: Final rule; petitions for reconsideration.

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SUMMARY: In this document the Commission responds to petitions for 
reconsideration of previous Commission decisions in this proceeding 
which implements the Communications Assistance for Law Enforcement Act 
(CALEA). The Commission makes minor revisions to the Commission's rules 
to clarify the arrangements telecommunications carriers subject to 
CALEA must make to ensure that law enforcement agencies can contact 
them when necessary, and to clarify the interception activity that 
triggers a record keeping requirement. The Commission makes additional 
clarifications without altering the rules, but otherwise denies the 
requests for reconsideration.

DATES: Effective June 4, 2001.

FOR FURTHER INFORMATION CONTACT: John Spencer or Susan Kimmel, 202-418-
1310.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second 
Order on Reconsideration (Second Order) in CC Docket No. 97-213; FCC 
01-126, adopted April 9, 2001, and released April 16, 2001. The 
complete text of this Second Order is available for inspection and 
copying during normal business hours in the FCC Reference Information 
Center, Courtyard Level, 445 12th Street, SW., Washington, DC, and also 
may be purchased from the Commission's copy contractor, International 
Transcription Services (ITS, Inc.), CY-B400, 445 12th Street, SW., 
Washington, DC.

Synopsis of the Second Order on Reconsideration

    1. This Second Order on Reconsideration (Second Order) resolves two 
petitions for reconsideration of the Report and Order (R&O) in this 
proceeding (64 FR 51462, September 23, 1999) and one petition for 
reconsideration of the Second Report and Order (Second R&O) in this 
proceeding (64 FR 55164, October 12, 1999). These decisions implemented 
sections 102, 105, and 301 of the Communications Assistance for Law 
Enforcement Act (CALEA) (Communications Assistance for Law Enforcement 
Act, Public Law 104-414, 108 Stat. 4279, 1994.) The Second Order makes 
minor revisions to 47 CFR 64.2103 and 64.2104 to clarify the 
arrangements telecommunications carriers subject to CALEA must make to 
ensure that law enforcement agencies can contact them when necessary, 
and the interception activity that triggers a record keeping 
requirement. The Second Order makes additional clarifications without 
altering the Commission's rules, but otherwise denies the requests for 
reconsideration.
    2. The U.S. Department of Justice and the Federal Bureau of 
Investigation (FBI) seek stronger personnel security measures than 
those adopted in the First R&O, in order to ``ensure the 
trustworthiness of the private-company employees who have become 
increasingly responsible for implementing electronic surveillance.'' As 
discussed in paragraphs 4 through 14 of the Second Order, the 
Commission denies the FBI's request. However, the Commission encourages 
carriers to consider voluntarily adopting, as internal procedures, 
measures to respond to the concerns presented by the FBI, as 
appropriate, and making them part of their systems security and 
integrity (SSI) policies and procedures.
    3. The FBI also proposes a requirement that carriers generate an 
automated message that would permit law enforcement agencies (LEAs) to 
confirm periodically that the software used to conduct an interception 
is working correctly and is accessing the equipment, facilities, or 
services of the correct subscriber. The Commission, as detailed in 
paragraphs 15 through 17 of the Second Order, similarly denies this 
proposal. In so doing, however, the Commission notes that ``there is 
nothing that would prevent carriers from providing this capability 
either on a voluntary basis or with compensation from LEAs.''
    4. The FBI next asks the Commission to modify the rules, adopted in 
the R&O requiring that carriers report acts of unauthorized electronic 
surveillance that occur on their premises and compromises of their SSI 
procedures involving the execution of electronic surveillance ``within 
a reasonable period of time upon discovery.'' The FBI recommends that 
the Commission modify the rule to require reporting ``as soon after 
discovery as is reasonable in light of privacy and safety concerns and 
the needs of law enforcement.'' The Commission, as indicated in 
paragraphs 18 through 20 of the Second Order, shares the FBI's concern 
about the importance of prompt reporting of systems security breaches 
and expects carriers to report breaches with due diligence and 
dispatch. However, in the absence of significant problems to date, the 
Commission declines to adopt additional factors to further define how 
quickly a carrier should report a security breach to law enforcement.
    5. The FBI seeks modification of the Commission's record keeping 
requirement in 47 CFR 64.2104(a)(1), pertaining to the commencement of 
interceptions. Specifically, FBI argues that the current language could 
lead to interpretations when the circuit is open for the duration of 
``multiple intercepts, the carrier's records of these various 
intercepts would all show the same `start date and time,' '' as opposed 
to recording individual interceptions. Thus, FBI asks the Commission to 
modify the phrase in Sec. 64.2104(a)(1) from ``date and time of the 
opening of the circuit'' to ``date and time at which the interception 
of communications or access to call identifying information was 
enabled.'' The Commission, in paragraphs 21 through 24 of the Second 
Order, grants the FBI's request and modifies the rules accordingly with 
slight modification.
    6. The National Telephone Cooperative Association (NCTA) asks that 
the Commission clarify the language of 47 CFR 64.2103 ``to make it 
obvious that a single person in not responsible for being law 
enforcement's point of contact[for CALEA matters], 24 hours a day, 7 
days a week.'' The Commission agrees with NCTA and, as indicated in 
paragraphs 25 through 28 of the Second Order, modifies Sec. 64.2102 
accordingly. The Commission

[[Page 22447]]

additionally makes two other clarifications regarding carrier SSI 
policies and procedures. First, the Commission revises Sec. 64.2103 to 
require carriers to place their information regarding responsible 
personnel and contacts in a separate appendix to their SSI policies and 
procedures. Second, the Commission clarifies that it will routinely 
make available to law enforcement agencies the carriers' responsible 
personnel and contact information. Finally, as discussed in paragraph 
31 of the Second, Order, the Commission declines to adopt other FBI 
proposals contained in its late-filed supplement.
    7. The Commission, in paragraphs 32 through 34 of the Second Order, 
denies NCTA's request that the Commission exempt small, rural telephone 
companies from the requirement to file with the Commission the policies 
and procedures they use to comply with the systems security and 
integrity rules. The Commission notes that small entitities have the 
flexibility to tailor their policies and procedures to its own unique 
circumstances.
    8. Finally, as discussed in paragraphs 35 through 38 of the Second 
Order, FBI, in its petition for reconsideration and/or clarification of 
the Second R&O asks the Commission to clarify carriers' responsibility 
for CALEA compliance in resale situations. The Second R&O held that as 
telecommunications carriers, resellers are generally subject to all 
provisions of CALEA, but that ``resellers' responsibility under CALEA 
should be limited to their own facilities.'' FBI is concerned that law 
enforcement might be effectively disabled from enforcing CALEA's 
assistance capability obligations in certain resale situations. The FBI 
asks that the Commission clarify either that (1) a carrier that sells 
telecommunications services to a reseller is itself a 
``telecommunications carrier'' under CALEA with respect to such 
services; or (2) if an underlying facilities-based service provider is 
not a ``telecommunications carrier,'' the reseller remains responsible 
in full for ensuring that the telecommunications services it provides 
to the public, and the equipment and facilities involved in providing 
that service, are CALEA-compliant. The Second Order clarifies that the 
language in the Second R&O regarding resellers exempts them from CALEA 
to the extent that they resell services of other, facilities-based 
carriers. The Commission clarifies that that decision was premised on 
the obligations of the underlying facilities-based carriers to comply 
with CALEA. Thus, to the extent that a reseller resells services or 
relies on facilities or equipment of an entity that is not a 
telecommunications carrier for purposes of the CALEA and thus is not 
subject to CALEA's assistance capability requirements, the Commission 
did not intend to exempt the reseller from its overall obligation to 
ensure that its services satisfy all the assistance capability 
requirements of section 103.

Final Regulatory Flexibility Act Certification

    9. The First Report and Order in this proceeding incorporated a 
Final Regulatory Flexibility Analysis of the effect on small entities 
of the CALEA rules adopted at that time, and the Second Report and 
Order incorporated a Final Regulatory Flexibility Analysis of the 
effect on small entities of the actions taken therein, which did not 
include CALEA rules. The Regulatory Flexibility Act of 1980, as amended 
(RFA) requires that a regulatory flexibility analysis be prepared for 
rulemaking proceedings, unless the agency certifies that ``the rule 
will not have a significant economic impact on a substantial number of 
small entities.'' (The RFA, 5 U.S.C. 601 et seq., has been amended by 
the Contract With America Advancement Act of 1996, Public Law 104-121, 
110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA is the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA). The RFA 
generally defines ``small entity'' as having the same meaning as the 
terms ``small business,'' ``small organization,'' and ``small 
governmental jurisdiction.'' In addition, the term ``small business'' 
has the same meaning as the term ``small business concern'' under the 
Small Business Act. A small business concern is one which: (1) Is 
independently owned and operated; (2) is not dominant in its field of 
operation; and (3) satisfies any additional criteria established by the 
Small Business Administration.
    10. This Second Order on Reconsideration does not make major 
revisions to the existing CALEA rules or enact new requirements, but 
does make minor revisions to 47 CFR 64.2103 and 64.2104. First, it 
clarifies the arrangements that telecommunications carriers subject to 
CALEA must make to ensure that law enforcement agencies can contact 
them when necessary, by requiring the use of a ``pull-off'' page for 
submitting contact information to the Commission. Second, it clarifies 
the definition of the interception activity that triggers a record 
keeping requirement. Neither change requires the collection of 
additional information or increases the frequency of record keeping, 
and the cost of complying with these revisions is nominal. Third, it 
clarifies without rule change that resellers are not exempt from the 
obligation to ensure that their services satisfy all the assistance 
capability requirements of section 103 of CALEA. As such, this action 
imposes no reporting, recordkeeping or other compliance requirement 
beyond those imposed by CALEA itself. Accordingly, the Commission 
certifies, pursuant to section 605(b), that the rule revisions adopted 
in this Second Order on Reconsideration will not have a significant 
economic impact on a substantial number of small entities.
    11. The Commission will send a copy of the Second Order on 
Reconsideration, including a copy of this final certification, in a 
report to Congress pursuant to the Small Business Regulatory 
Enforcement Fairness Act of 1996. The Commission will also send a copy 
of the Second Order on Reconsideration, including this final 
certification, to the Chief Counsel for Advocacy of the Small Business 
Administration.

Paperwork Reduction Act of 1995 Analysis

    12. This Second Order does not contain a new information 
collection, but only requires a change of format for future submissions 
of a carrier's SSI filing. Specifically, as described in paragraph 24, 
and in conformance with revised Sec. 64.2103(b)(4) of the Commission's 
rules, 47 CFR 64.2103(b)(4), point of contact information must appear 
in a separate appendix attached to the SSI report.
    13. This action is taken pursuant to sections 1, 2, 4(i) and (j), 
201, 229, 303(f) and (r), and 332 of the Communications Act of 1934, as 
amended, 47 U.S.C. 151, 152, 154(i) and (j), 201, 229, 303(f) and (r), 
and 332.

Ordering Clauses

    14. Part 64 of the Commission's rules is amended.
    15. The rule amendments made by this Second Order shall become 
effective June 4, 2001. It Is Further Ordered that the Consumer 
Information Bureau, Reference Operations Division, shall send a copy of 
this Second Order, including the Final Regulatory Flexibility 
Certification, to the Chief Counsel for Advocacy of the Small Business 
Administration.
    16. The DOJ/FBI Motion to File Consolidated Reply to Oppositions to 
Petition for Reconsideration Exceeding Ten Pages in Length is granted.
    17. The Motion for Acceptance of Supplemental Comments filed by the

[[Page 22448]]

Department of Justice/Federal Bureau of Investigation is granted.
    18. The Petition for Reconsideration of section 105 Report and 
Order filed by the Department of Justice/Federal Bureau of 
Investigation is granted to the extent indicated herein, and is 
otherwise denied.
    19. The Petition for Reconsideration and/or Clarification filed by 
the National Telephone Cooperative Association is granted to the extent 
indicated herein, and is otherwise denied.
    20. The Petition for Reconsideration and/or Clarification filed by 
the Department of Justice/Federal Bureau of Investigation is granted to 
the extent indicated herein, and is otherwise denied.

List of Subjects in 47 CFR Part 64

    Communications common carriers, Reporting and recordkeeping 
requirements.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.

Rule Changes

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 64 as follows:

PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS

    1. The authority citation for part 64 continues to read as follows:

    Authority: 47 U.S.C. 154, 47 U.S.C. 225, 47 U.S.C. 251(e)(1), 
151, 154, 201, 202, 205, 218-220, 254, 302, 303, and 337, unless 
otherwise noted. Interpret or apply section 201, 218, 225, 226, 227, 
229, 332, 48 Stat. 1070, as amended. 47 U.S.C. 201-204, 208, 225, 
226, 227, 229, 332, 501 and 503 unless otherwise noted.


    2. Section 64.2103 is revised to read as follows:


Sec. 64.2103  Policies and procedures for employee supervision and 
control.

    A telecommunications carrier shall:
    (a) Appoint a senior officer or employee responsible for ensuring 
that any interception of communications or access to call-identifying 
information effected within its switching premises can be activated 
only in accordance with a court order or other lawful authorization and 
with the affirmative intervention of an individual officer or employee 
of the carrier.
    (b) Establish policies and procedures to implement paragraph (a) of 
this section, to include:
    (1) A statement that carrier personnel must receive appropriate 
legal authorization and appropriate carrier authorization before 
enabling law enforcement officials and carrier personnel to implement 
the interception of communications or access to call-identifying 
information;
    (2) An interpretation of the phrase ``appropriate authorization'' 
that encompasses the definitions of appropriate legal authorization and 
appropriate carrier authorization, as used in paragraph (b)(1) of this 
section;
    (3) A detailed description of how long it will maintain its records 
of each interception of communications or access to call-identifying 
information pursuant to Sec. 64.2104;
    (4) In a separate appendix to the policies and procedures document:
    (i) The name and a description of the job function of the senior 
officer or employee appointed pursuant to paragraph (a) of this 
section; and
    (ii) Information necessary for law enforcement agencies to contact 
the senior officer or employee appointed pursuant to paragraph (a) of 
this section or other CALEA points of contact on a seven days a week, 
24 hours a day basis.
    (c) Report to the affected law enforcement agencies, within a 
reasonable time upon discovery:
    (1) Any act of compromise of a lawful interception of 
communications or access to call-identifying information to 
unauthorized persons or entities; and
    (2) Any act of unlawful electronic surveillance that occurred on 
its premises.

    3. Section 64.2104 is amended by revising paragraph (a)(1)(ii) to 
read as follows:


Sec. 64.2104  Maintaining secure and accurate records.

    (a) * * *
    (1) * * *
    (ii) The start date and time that the carrier enables the 
interception of communications or access to call identifying 
information;
* * * * *
[FR Doc. 01-11168 Filed 5-3-01; 8:45 am]
BILLING CODE 6712-01-P