FCC GRANTS LIMITED EXTENSION FOR CALEA PACKET-MODE REQUIREMENTS

Wireless carriers have been urging FCC to push back packet- mode compliance date because technology for such intercepts isn’t yet available commercially, except for FBI’s controversial Carnivore system, now known formally as DCS-1000 e-mail monitoring system. CTIA, which filed request for blanket extension nearly year ago, recently told FCC that lack of decision by agency in last year had created vacuum in technology development, in which only system available for intercept packets regardless of transmission or protocol was Carnivore. In original petition, CTIA had asked for additional compliance time for punch-list items and that packet-mode compliance date be suspended until legal and technical issues were resolved. Order, outlined by FCC in news release but not yet available, said Commission “found no need” to extend Sept. 30 deadline industrywide beyond new Nov. date. “The FCC found that implementation of this capability is unrelated to the implementation of the punch-list capabilities and that only a small percentage of telecommunications carriers use packet-mode technology,” agency said. Nov. 19 date provides brief period for carriers to upgrade systems or use petition procedures under Sec. 107 of CALEA for individual relief. Sec. 107 allows FCC, after consulting with FBI’s CALEA Implementation Section, to grant more time to carriers for complying with assistance capability requirements. Common Carrier and Wireless bureaus plan to release public notice soon on those petition procedures.

Year ago U.S. Appeals Court, D.C., had vacated and remanded to FCC parts of CALEA order that covered 4 punch list items, which included capabilities such as dialed digits and custom calling. It had turned down challenges to packet-mode data requirements in CALEA order, but made clear that law enforcers needed court warrants to obtain content of communications on packet networks. While court action didn’t cover 2 other punch-list items, FCC said it was establishing new compliance date for all those capabilities so carriers could avoid “major inefficiencies” of partial implementation of list. Four vacated items were post-cut-through dialed digit extraction, party hold-join-drop information, dialing initiated by subject of investigation, signaling information. Court concluded agency didn’t adequately explain its reasoning in requiring those 4 capabilities as call-identifying information.

In advance of FCC order, AT&T Wireless was among mobile carriers that had submitted request for additional time to comply with packet-mode capability deadline (CD Aug 29 p1). One concern that AT&T Wireless raised was that FBI was misusing flexible deployment plan, process that allows carriers to deploy CALEA capabilities based on their normal upgrade schedule and in line with where law enforcement agencies need surveillance capabilities most. AT&T Wireless contended that FBI had been using process to secure agreements with carriers to develop intercept capabilities for information services that were exempt from CALEA, which covers only communication services.

Another issue is that when flexible deployment plans were crafted for original core requirements of CALEA, wireless carriers had sense from vendors of when equipment would be available and could plan accordingly. That process, in which FBI doesn’t have veto power over deployment plans but can provide input, worked well for core requirements of CALEA, source said. Because timing is less clear on when commercially available packet-mode solutions will be available, it’s harder for carriers to provide timelines on deployment plans, source said. One reason that equipment for packet mode capability under CALEA hasn’t been available commercially yet is that industry has been waiting for FCC to respond to joint experts’ report filed last Sept., industry source said. Standards development efforts had been awaiting FCC guidance, although they just resumed this month, source said.

“Hopefully, in the near future, the Commission will also be able to address some of the pending legal and technical issues concerning the application of CALEA to packet-data services,” said Telecom Industry Assn. Pres. Matthew Flanigan, who lauded order. He said it provided “much-needed further guidance” for carriers on how to move forward on CALEA. “Especially in light of last week’s tragic events, TIA and the rest of the communications industry will continue to work with the Commission, the Administration and Congress to implement CALEA as quickly and efficiently as possible,” he said.

CTIA Pres. Tom Wheeler expressed disappointment that order would require individual waivers from carriers on packet-mode compliance date. “The technical evidence in our submission to the FCC was clear: There is no commercially available solution that meets the FCC’s packet mode surveillance requirements,” he said. “We understand what they want to accomplish and why, but as of now the commercially available systems simply don’t exist.”