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[C]arriers... must appoint the senior authorized officer(s) or employee(s) whose job function includes being the point of contact for law enforcement to reach on a daily, around the clock basis. We therefore require carriers to include a description of the job function(s) of such points of contact and a method to enable law enforcement authorities to contact the individual(s) employed in this capacity in their policies and procedures.

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However, section 64.2103 of the Commission's rules codifies this requirement with the following language:

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A telecommunications carrier shall: . . . (b) Appoint a senior officer or employee as a point of contact responsible for affirmatively intervening to ensure that interception of communications or access to call-identifying information can be activated only in accordance with appropriate legal authorization, and include, in its policies and procedures, a description of the job function of the appointed point of contact for law enforcement to reach on a seven days a week, 24 hours a day basis. 70

Discussion. We agree with NTCA that clarification is warranted. The ambiguity arises largely because section 64.2103 combines two somewhat different requirements. Under it, a carrier must: (1) designate someone to be responsible for supervising and controlling its CALEA activities, in order to ensure systems security and integrity, and (2) specify how law enforcement agencies can contact appropriate carrier personnel whenever necessary for CALEA purposes. While the responsible person may also be the primary point of contact, it is impractical for that person to be the sole point of contact. As NTCA notes, "No single employee is always available. Employees take vacations, attend seminars and meetings, and are just unavailable." The FBI agrees: "The Department believes that the language and purposes of section 105 can be effectively satisfied in this context as long as each carrier ensures that someone is available around the clock to assist law enforcement in the effectuation of lawfully-authorized surveillance, even if the carrier's 'point of contact' is not the same person at all times."72

28. We therefore revise section 64.2103 to distinguish these separate requirements, thereby clarifying that a carrier must provide LEAS with round-the-clock access to its CALEA personnel, but not to any one individual. In many cases, for example, the contact information could be a telephone number or numbers that could connect to the duty station(s) of the point(s) of contact during work hours, and could be forwarded so as to page the on-call point(s) of contact outside work hours. Whatever arrangements a particular carrier might make, the objective would be to provide a means for law enforcement to reach responsible carrier personnel with a minimum of delay.

29. We next take this opportunity to clarify on our own motion two other minor issues regarding carrier SSI policies and procedures, which have arisen in our review of initial filings." First, we revise section 64.2103 to require carriers to place their information regarding responsible personnel and contacts in a separate appendix to their SSI policies and procedures, to simplify both extracting this information

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72 FBI comments at 2. PCIA, the only other party commenting on this issue, also supports the NTCA request.

PCLA at 5-6.

73 Section 64.2103 became effective on February 2, 2000, and initial filings were due by May 2, 2000. See 65 Fed. Reg. 8666 (Feb. 22, 2000).

for LEA use and updating it as changes occur." Carriers whose initial SSI filings include the required personnel and contact information, but not in a separate appendix, need not revise their filings solely to put the information in an appendix. However, carriers whose initial filings do not include the required information must promptly amend their filings to do so, and should submit it in the form of a separate appendix. Initial and revised filings made after the effective date of the rule changes made herein must include such information in a separate appendix.

30. Second, we clarify that we will routinely make available to law enforcement agencies the carriers' responsible personnel and contact information. This represents a continuation of our current practice, not a change, since contact information that is unavailable to LEAs would obviously serve no purpose. This clarification also resolves one of the requests the FBI makes in the late-filed supplement to its petition, namely that we "state explicitly that... contact information will . . . continue to be made available to the federal, state and local law enforcement agencies for whose benefit the information is maintained." 75

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31. Finally, we decline to adopt other FBI proposals set out in its late-filed supplement. The FBI suggests that carriers be required to notify the Commission of "any significant change" in point of contact information, “immediately" and "in writing, or (preferably) by electronic message," and that the Commission specify a form for providing contact information." We find these proposals, like some others discussed above, too inflexible to apply to all carriers. Under the rules, carriers must provide information necessary for LEAs to contact them for purposes of CALEA, and we prefer to leave to their individual discretion how best to update this information in a clear and timely manner. Carriers should keep in mind, however, that the 90-day deadline for filing updated SSI policies and procedures specified in section 64.2105(a) is the maximum time in which to file. Where the only change is to the relatively brief appendix identifying responsible personnel and contact information, we would expect carriers to update this information as soon as practical, to ensure that LEAs' ability to contact carriers is not adversely affected. Likewise, we expect carriers to provide the required information clearly, and thus see no need to specify a particular format. Should later experience reveal problems in either clarity or timeliness, we will revisit the need for further regulation.

F. Exemption for Small Businesses

32. Background. NTCA next asks us to 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," as required by section 64.2105 of the Commission's rules." NTCA argues here that the filing requirement imposes unnecessary burdens on both carriers and the Commission, and

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74 For example, when changes occur to contact information, the carrier could simply revise and file the appendix, not the entire policies and procedures document.

75 FBI supplement at 3.

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Section 64.2105(a) currently requires carriers to file amended SSI policies and procedures within 90 days of either their revision or a triggering event. 47 C.F.R. § 64.2105(a).

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FBI supplement at 4-5. AT&T, CTIA and PCIA oppose these proposals. AT&T response at 3-7, CTIA opposition at 3-6, PCI opposition at 2-6.

78 NTCA petition at 3-4.

79 47 C.F.R. § 64.2105(a).

that the possibility of money forfeitures is an adequate tool "to ensure that companies will develop and maintain compliant policies."

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33. Discussion. In the Report and Order, we recognized that this filing requirement would entail some burden on carriers, and considered options for reducing the burden for small carriers. We concluded, however, that "the plain language of section 229(b)(3) requires all telecommunications carriers to submit to the Commission the policies and procedures adopted to comply with the requirements established under sections 229(b)(1)-(2)," without “distinction between the carriers, based Only PCIA supports NTCA's proposal, but neither party addresses the statutory barrier to the relief NTCA seeks. As the FBI notes, the NTCA argument "is simply an argument against [the structure of] the statute itself..., [which] should be pressed before Congress, not before the Commission."83 We agree with the FBI's interpretation that the relief NTCA seeks is contrary to the statutory language, and therefore we deny NTCA's request.

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34. We would note, however, that section 64.2103 does not prescribe the content or form of a carrier's policies and procedures document. Thus, each carrier has discretion, subject to Commission oversight, to tailor its policies and procedures to its own unique circumstances. This flexibility offers a measure of relief for small carriers whose SSI needs are modest, and makes compliance with section 64.2105 less burdensome for those carriers.

III. PETITION FOR RECONSIDERATION OF SECOND REPORT AND ORDER

35. Background. In its petition for reconsideration and/or clarification of the Second Report and Order, the FBI asks us to clarify carriers' responsibility for CALEA compliance in resale situations. In the Second Report and Order, we noted that CALEA's assistance capability requirements apply to "equipment, facilities, or services that provide a customer or subscriber with the ability to originate, terminate, or direct communications." The only statutory exceptions to the assistance capability requirements are based on the nature of the service provided: private line services and information services. We therefore held that as telecommunications carriers, resellers are generally subject to all provisions of CALEA. We did, however, find that "resellers' responsibility under CALEA should be limited to their own facilities" and that they are "not. . . responsible for the CALEA compliance responsibilities of the carrier whose services they are reselling with respect to the latter's underlying facilities."86

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36. The FBI is concerned that law enforcement might be effectively disabled from enforcing CALEA's assistance capability obligations in certain resale situations. In particular, the FBI focuses on instances where a reseller denies CALEA responsibility on the grounds that it does not use its own facilities to provide the service in question, and the underlying facilities-based carrier also denies responsibility arguing that it is not a "telecommunications carrier" under CALEA because it does not

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FBI response and partial opposition at 3.

84 Second Report and Order, at para. 10 (quoting 47 U.S.C. § 1002(a))(emphasis added).

85 47 U.S.C. §§ 1001(8)(C)(i), 1002(b)(2). See also Second Report and Order, at para. 12. 86 Second Report and Order, at para. 24.

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provide telecommunications services directly to the public on a "common carrier" basis. The FBI asks that we 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.

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37. Discussion. We agree with the FBI that Congress intended to ensure that services offered by telecommunications carriers are to comply with the assistance capability requirements of CALEA section 103. We clarify here that the language in the Second Report and Order regarding resellers was not intended to thwart that fundamental statutory purpose. As noted above, in the Second Report and Order we held that as telecommunications carriers, resellers are generally subject to CALEA. However, exercising our authority under section 102(8)(C), we exempted resellers from those requirements to the extent that they resell services of other, facilities-based carriers. We here clarify 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 CALEA and thus is not subject to CALEA's assistance capability requirements," we 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.

38. We appreciate that some resellers may face difficulties in making arrangements with their service providers for CALEA assistance capabilities. Yet we do not agree with TRA that simply because non-facilities-based resellers must rely on others for CALEA assistance capabilities, they "could never achieve compliance with CALEA assistance capability obligations," or that doing so "would expose the consuming public generally to the risk of unacceptable rate increases or diminished availability of service offerings. In situations where a reseller does not resell the services of a facilities-based carrier subject to CALEA, it can contract with its facilities provider or third parties for CALEA assistance capabilities in the same way it contracts for any other network capabilities. We expect that CALEA assistance capabilities generally will be available, and the statute offers relief mechanisms where their availability is delayed or not reasonably achievable."

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IV. PROCEDURAL MATTERS

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A. Motions

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In the interest of having a full record on these important issues, we will grant the FBI's motions to file a consolidated reply, and for acceptance of the late-filed supplement to its petition, and deny the various oppositions to the latter.

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B. Final Regulatory Flexibility Certification

The 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 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.

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41. 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 sections 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 "pulloff" 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 § 605(b), 101 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.

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See paragraphs 63-95 of the full text of the Report and Order. The Order on Reconsideration revised these rules and incorporated in Appendix B a Supplemental Regulatory Flexibility Analysis reflecting the impact of the revised rules on small entities.

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See Appendix B of the full text of the Second Report and Order.

The RFA, 5 U.S.C. § 601 et seq., has been amended by the Contract With America Advancement Act of 1996, Pub. L. No. 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA is the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA).

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Id. at § 601(6).

Id. at § 602(3) (incorporating by reference the definition of “small business concern" in the Small Business Act, 15 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(s) in the Federal Register."

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