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Department of Justice
The FCC should conclude that CALEA is applicable to providers of broadband Internet access service and certain types of VoIP because it serves the public interest and is consistent with Congress’s intent. Most commenters do not favor any special legal status for TTP solution vendors. Telecommunications vendors must remain fully involved in designing CALEA solutions for their telecommunications carrier customers. TTPs should not be used to determine whether call-identifying information is reasonably available. TTP solutions are not comparable to safe‑harbor solutions. TTPs should not be used to shift financial responsibilities from carriers to law enforcement. Special security and privacy safeguards are needed for TTPs. The FCC was correct in concluding that Section 107(c) extensions are not available to cover equipment, facilities, or services installed or deployed after October 25, 1998. There is a broad consensus among commenting parties that the FCC has the authority to impose CALEA compliance deadlines. The FCC has the authority to adopt and enforce CALEA rules under Section 229 of the Communications Act. The comments filed in this proceeding demonstrate that specific rules regarding carrier responsibility for CALEA development and implementation costs for post-January 1, 1995, equipment and facilities are needed to ensure compliance. The FCC should consider all viable proposals for carrier recovery of CALEA development and implementation costs, but should not adopt any proposal that would permit carriers to recover such costs from law enforcement. Without adequate evidence of the scope of CALEA costs, the FCC should not allow carriers to continue to use cost as an excuse for non-compliance with CALEA. The information provided by commenters shows that CALEA compliance costs are manageable. Carriers should not be allowed to use lack of government funding as an excuse for non-compliance with CALEA. The comments filed in this proceeding make clear that the FCC must distinguish between CALEA implementation costs and CALEA intercept costs.
Verizon
The FCC should affirm its tentative conclusion that whether CALEA applies to a particular service is independent of how such a service is classified for regulatory purposes under Title I or Title II of the Communications Act. Any approach that attempted to read the two statutes in parallel would contradict the plain language of CALEA by ignoring the “substantial replacement” provision of its definition of “telecommunications carrier” and would undermine the statute’s purposes. The FCC should affirm its tentative conclusion that VoIP services fall within the substantial replacement provision of CALEA because they can be used to make voice phone calls that have traditionally been provided using local telephone exchange service. The FCC should not adopt its proposed “managed v. non-managed” test for determining which specific VoIP services are subject to CALEA. Instead, it should adopt a test by which any VoIP provider that uses equipment such as application servers, media gateways, or networks falls within CALEA, regardless of whether the service may be labeled as “non-managed” or “peer to peer.” The FCC should make clear that any CALEA obligations fall equally on all competing providers of broadband access services. The FCC should reaffirm the admonition in CALEA’s legislative history that CALEA was not intended to provide “one stop shopping” for law enforcement and that, to the extent broadband access service providers are subject to CALEA, in many cases the underlying network provider will not be the entity responsible for providing law enforcement with the relevant call-identifying information or content. The FCC should affirm its tentative conclusion not to require any “pre-approval” process. The FCC should also reject DOJ’s proposed procedures and requirements for seeking CALEA rulings in advance of deploying new services, as well as its suggestion that carriers that do not employ such procedures will face more vigorous enforcement. The FCC should resolve technical issues relating to call-identifying information in the standards process instead of this proceeding and it should not require any carrier to use a “trusted third party” approach to CALEA compliance. The FCC should not create any additional enforcement procedures because they are both unnecessary and contrary to CALEA. The FCC should not adopt DOJ’s suggestion that CALEA precludes any recovery of so-called “capital costs” for post-1995 equipment.
Sprint
Sprint supports law enforcement CALEA objectives. Sprint also agrees with DOJ that the FCC should not address in this general rulemaking proceeding the sufficiency of any industry CALEA packet-mode standards. The FCC does not possess the authority to adopt a new CALEA enforcement regime in addition to one that Congress has already established. Section 107(b) authorizes the FCC to grant extensions for packet‑mode services. The adoption of “one size fits all” Section 109(b) rules may not achieve the desired objective. Carriers can recover their CALEA “capital costs” from law enforcement agencies as a matter of law. There is no basis to adopt different rules for small carriers.
Bell South
The industry should continue to take the lead in developing CALEA standards as intended by Congress. The scope of a provider’s CALEA obligations varies with the type of service at issue. The FCC must adopt reasonable compliance deadlines that take into account the time necessary to develop standards, design products, and deploy CALEA solutions in carrier networks. The FCC’s proposed framework for considering Section 109(b) petitions is far too stringent. CALEA enforcement lies exclusively with the federal courts. Requiring providers to bear the sole responsibility for CALEA implementation costs is inconsistent with CALEA. The FCC should allow, but not require, providers to use trusted third parties to satisfy their CALEA obligations.
SBC
The FCC should seek extensive input from industry experts before addressing complex technical issues, such as the definitions of call‑identifying information and call content. The FCC must give the communications industry a reasonable amount of time to develop and implement standards. The FCC must not limit the extension process to equipment, facilities, and services installed or deployed prior to October 25, 1998. The FCC should reject law enforcement’s self-serving and legally suspect arguments regarding cost recovery.
Vonage
The FCC should seek more specificity concerning problems faced by law enforcement. If CALEA is found to apply, the FCC must give effect to all of the statute’s provisions including cost recovery and a reasonable compliance timeframe. Application of CALEA to VoIP providers based on a “managed/non-managed” distinction will leave doors wide open for bad actors, eliminating law enforcement benefit of CALEA application to VoIP and creating incentives for them to move to “non-managed” technologies.
Earthlink
The FCC’s tentative conclusion that the information services component of broadband Internet access services are subject to CALEA is in violation of the statute. The FCC may not write the “information services” exclusion out of CALEA. The FCC’s reading of the “substantial replacement” provision in CALEA is not supported by the plain language of the statute. If the FCC’s tentative conclusion is adopted in its current form, it will be successfully challenged in court, causing continued industry uncertainty and preventing law enforcement from getting the access it has requested.
Verisign
The principal issue in this proceeding revolves around the question of who bears the costs for the imposed capability requirements. Almost every commenting party strongly supported the use of trusted third party service bureaus to meet the capability requirements. Although the time to act is now, the FCC can take additional actions to further reduce the burdens and costs. The FCC should treat additional significant law enforcement support capabilities in a subsequent phase of this proceeding.
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