Clients and Interested Parties:
On September 23, 2005, the Federal
Communications Commission (FCC) released a
First Report and Order applying the
Communications Assistance for Law
Enforcement Act (CALEA) to interconnected
VoIP providers. Interconnected VoIP
providers must be in compliance with CALEA’s
obligations within 18 months of the
effective date of the new ruling, or by the
Spring of 2007.
Background
Enacted in October 1994, CALEA was intended
to preserve the ability of law enforcement
agencies to conduct electronic surveillance
by requiring that "telecommunications
carriers" and manufacturers of such
equipment modify and design their equipment,
facilities, and services to ensure that they
have the required surveillance
capabilities. Section 103 of CALEA imposes
specific obligations on "telecommunications
carriers" (as defined under CALEA) for
assisting law enforcement, including with
respect to 1) call intercept; 2) accessing
call identifying information; 3) delivering
intercepted communications and call
identifying information to the government;
and 4) doing so with a minimum of
interference to subscriber service and
privacy. The FCC has acknowledged the
importance of electronic surveillance in law
enforcement's effort to fight terrorism and
crime. For more information see:
http://www.intelecard.com/legalreg/03legalregs.asp?A_ID=449.
“Telecommunications Carrier” Under CALEA
In its VoIP CALEA Order, the FCC
affirms its tentative conclusion that the
definition of “telecommunications carrier”
under CALEA is more inclusive than the
definition of the same term in the
Communications Act of 1934 (Communications
Act). CALEA is different because, under a
concept known as the “Substantial
Replacement Provision (SRP)”, some
information services can be treated as
telecommunications services if the service
replaces a substantial portion of the local
telephone exchange.
Under the SRP in CALEA, entities falling
under the definition of “information
service” under the Communications Act would
be considered “telecommunications carriers”
for purposes of CALEA if the entity meets
the three components of the SRP. The three
components are: 1) the entity must engage in
providing wire or electronic communication
switching or transmission service; 2) the
FCC must find that such service is a
replacement for a substantial portion of the
local telephone exchange; and 3) the FCC
must find that it is in the public interest
to deem such entity a telecommunications
carrier for purposes of CALEA.
CALEA Extended to Interconnected VoIP
The FCC’s VoIP CALEA Order concludes
that CALEA applies to interconnected VoIP
providers. Interconnected VoIP services are
those VoIP services that: 1) enable
real-time, two-way voice communications; 2)
require a broadband connection; 3) require
IP-compatible customer equipment; and 4)
permit subscribers to receive calls from and
initiate calls over the PSTN. The ruling
applies to all VoIP communications that
offer such capabilities, not only those that
actually involve the PSTN.
The ruling applies the three components of
the SRP test to interconnected VoIP
providers and finds that such providers are
“telecommunications carriers” for purposes
of CALEA.
Switching or Transmission:
The FCC finds the term “switching” in the
SRP to include “routers, softswitches, and
other equipment that may provide addressing
and intelligence functions for packet-based
communications to manage and direct the
communications along to their intended
destinations.” Interconnected VoIP
providers use those technologies, and
therefore engage in providing wire or
electronic communication switching or
transmission service.
Substantial Replacement:
The ruling determines that interconnected
VoIP providers replace a substantial portion
of the local telephone exchange service,
namely the voice function of the traditional
local telephone exchange. Interconnected
VoIP service essentially is a substitute for
conventional telephone service.
Public Interest:
According to the FCC’s ruling, it would be
in the public interest to apply CALEA to
interconnected VoIP providers because: 1)
the decision will not have a harmful effect
on competition since all interconnected VoIP
providers are covered; 2) the decision will
not discourage the development of new
technologies and services because there has
been no such discouragement since the FCC
announced its tentative conclusion in the
VoIP CALEA rulemaking; and 3) protection of
national security and public safety compels
application of CALEA to these services.
Issues for Next Order
The VoIP CALEA Order only establishes
which entities are subject to CALEA. The
VoIP CALEA rulemaking raised other
issues, including: 1) the ability of VoIP
providers to provide all of the capabilities
required by CALEA; 2) identification of
future services and entities subject to
CALEA; 3) compliance extensions; 4) cost
recovery; and 5) enforcement. These issues
will be addressed in a future FCC order to
be released in the coming months.
Effective Dates
Interconnected VoIP providers must be in
full compliance with CALEA requirements
within eighteen months of publication of the
VoIP CALEA Order in the Federal
Register.
The FCC’s VoIP CALEA Order is the
first step towards applying CALEA to VoIP
services. Interconnected VoIP providers
must be prepared, within eighteen months, to
fully comply with the requirements of
Section 103 of CALEA. Although the precise
requirements and capabilities that they will
be required to provide have yet to be
defined, such providers should be aware of
CALEA’s requirements and take them into
consideration when planning and designing
their systems.