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FCC Clarifies CALEA Compliance Requirements for Broadband and VoIP Service Providers.

May 5, 2006

On May 4, 2006, the Federal Communications Commission ("FCC") adopted a Second Report and Order ("Order") relating to the application of the Communications Assistance for Law Enforcement Act ("CALEA") to facilities-based broadband and interconnected VoIP service providers. Last year, in its First Report and Order in this proceeding, released on August 5,2005, the FCC determined that facilities-based broadband Internet services and interconnected VoIP services are subject to the law enforcement wiretap rules established under CALEA. As a result, the FCC required providers of these services to have the capability to accommodate law enforcement wiretaps in conformity with CALEA no later than May 14, 2007.

A number of communications companies, privacy advocates and other groups who believe the FCC exceeded its authority regarding CALEA have requested the U.S. Court of Appeals in Washington, D.C. overturn the rules established in the FCC's First Report and Order. That case, filed in October, 2005, remains pending. ill the present Order, the FCC affirms its May 14, 2007 deadline and clarifies a number of other issues regarding CALEA compliance by broadband and VoIP providers. It is possible that one of the reasons the FCC adopted this Order was to try to dissuade the U.S. Court of Appeals from overturning the CALEA rules it adopted in the First Report and Order.

According to the FCC, the Order, which has not yet been released, addresses the following points:

• The May 14, 2007 compliance deadline established by the First Report and Order remains in effect and applies to all facilities-based broadband Internet access and interconnected VoIP providers;

• The FCC will not intervene in the current process for developing CALEA assistance capability standards for IP services unless a petition is filed with the FCC alleging that the capability standards currently under development by the private sector are deficient;

• Service providers will be permitted to use "Trusted Third Parties" to assist in meeting their CALEA obligations and for providing law enforcement agencies with the electronic surveillance information those agencies require in an acceptable format;

• Extensions of the May 17, 2007 compliance deadline under CALEA Section 107(c) will only apply to equipment, facilities and services deployed prior to October 25, 1998 and the scope of the reimbursements for CALEA compliance costs available under CALEA Section 109(b) will be very limited;

• The FCC, in addition to law enforcement remedies, has the authority under Section 229(a) of the Communications Act to take enforcement action against service providers that fail to comply with CALEA;

• Service providers are responsible for CALEA development and implementation costs for post-January 1, 1995 equipment and facilities, and there will be no national surcharge to recover CALEA costs;

• All covered service providers are required to submit interim reports to the FCC explaining the steps they are taking to ensure that they will be CALEA-compliant by May 14, 2007, and they are also required to come into compliance with the system security requirements in the Commission's rules within 90 days of the effective date of the Order.

We would be happy answer any questions that you may have concerning this matter.

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