FCC ADOPTS SECOND REPORT & ORDER CLARIFYING CALEA OBLIGATIONS OF CERTAIN IP-BASED SERVICE PROVIDERS
On May 3, 2006, the FCC adopted a Second Report and Order and Memorandum Opinion and Order (Second Order) on implementation of the Communications Assistance for Law Enforcement Act (CALEA). The primary goal of the Order is to ensure that Law Enforcement Agencies (LEAs) have all of the resources that CALEA authorizes to combat crime and support homeland security, particularly with regard to facilities-based broadband Internet access providers and interconnected voice over Internet protocol (VOIP) providers.
The FCC's CALEA proceedings were initiated by a Joint Petition filed by the Department of Justice, Federal Bureau of Investigation, and Drug Enforcement Administration in March 2004. The First Report and Order concluded that facilities-based broadband Internet access and interconnected VOIP providers were considered telecommunications carriers=94 and, hence, are subject to CALEA. The First Report is currently the subject of appeal pending before the United States Court of Appeals for the District of Columbia Circuit, American Council on Education v. FCC. Recently, the case was argued before the court and reports are that the panel of judges was highly critical of the FCC's decision, with one Judge calling the FCC attorney's argument in support of CALEA extension to Internet access providers, gobbledygook.
Nevertheless, the Second Order affirms that the CALEA compliance deadline for facilities-based broadband Internet access and interconnected VoIP services will be May 14, 2007, as established by the First Report and Order.
The Second Order clarifies that this May 14, 2007 compliance date will apply to all facilities-based broadband Internet access and interconnected VoIP providers. By applying the same compliance date to all providers the FCC hopes to eliminate confusion about the applicability of the deadline, avoid any skewing effect on competition, and prevent migration of criminal activity onto networks with delayed compliance dates.
The FCC also clarified that, absent the filing of a petition, it will not intervene in the ongoing process among telecommunications standards-setting bodies, LEAs and other interested persons, to develop assistance capability standards.
The FCC clarified that providers are given the option of using Trusted Third Parties (TTPs) to assist in meeting their CALEA obligations. TTPs are available to provide a variety of services for CALEA compliance, including processing requests for intercepts, conducting electronic surveillance, and delivering relevant information to LEAs. The Second Order makes clear however that, if a provider chooses to use a TTP, the provider remains responsible for ensuring the timely delivery of call-identifying information and call content information to a LEA and for protecting subscriber privacy, as required by CALEA.
The Second Order concludes that carriers are responsible for CALEA development and implementation costs for post-January 1, 1995 equipment and facilities, and rejected imposing a national surcharge to recover CALEA costs.
And, with regard to enforcement of its rulings, the FCC announced it would take separate enforcement action under section 229(a) of the Communications Act against providers that fail to comply with CALEA.
Finally, the Second Order requires all carriers providing facilities-based broadband Internet access and interconnected VoIP service to submit interim reports to the Commission to ensure that they will be CALEA-compliant by May 14, 2007. All facilities-based broadband Internet access and interconnected VoIP providers to whom CALEA obligations were applied in the First Report and Order are to come into compliance with the system security requirements in the Commission's rules within 90 days of the effective date of the Second Order.
However, given the skepticism shown by the D.C. Circuit Court during oral arguments of the American Council on Education v. FCC appeal, there is the potential for a delay to 90-day compliance deadline. This rapidly developing area of concern warrants increased attention on the part of allentities subject to CALEA requirements.
WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION (WUTC) TO IMPLEMENT NEW STATE LAW ELIMINATING USE OF PRICE LISTS FOR COMPETITIVE SERVICES
On June 8, 2006, a new law takes effect in the state of Washington which eliminates the use of price lists for competitively classified telecommunications services.
The new law contemplates that instead of using Price Lists filed with the WUTC, companies will communicate directly with their customers through written contracts or customer service agreements. All telecommunications carriers who currently have affected Price Lists on file shall be required to withdraw them and provide their customers with information about ongoing rates, terms and conditions.
The new law does not, however, affect tariffs or regulatory fees and carriers are still required to work with WUTC to resolve consumer complaints.
WUTC will accept new price list filings until June 7, 2006. After that, new price list filings will not be accepted and the WUTC will begin accepting notices of Price List withdrawals. By June 30, 2007, affected carriers must either withdraw existing Price Lists or petition for a one-year extension.
If you have any questions about the new law or procedures being implemented by WUTC, please contact your regulatory counsel. If you have none or seek guidance with respect to your obligations, please contact Jonathan S. Marashlian at snipped-for-privacy@thlglaw.com or 703-714-1300.
CONNECTICUT PROPOSES PER LINE ASSESSMENTS TO SUPPORT STATEWIDE 911 EMERGENCY SERVICES
On May 3, 2006, the Connecticut Department of Public Utility Control released a Draft Decision in its annual assessment proceeding to fund development and administration of the state=92s enhanced 911 program. In accordance with Conn. Agencies Regs. =A728-24-10(a), the Draft Decision proposes that on and after June 1, 2006, each telephone and telecommunications company providing local telephone service (including ILECs and CLECs) and each Commercial Mobile Radio Service (CMRS) provider (including CMRS resellers) shall assess a fee against each of its subscribers based on the following multi-line assessment schedule:
Wireless Telephone Numbers/ Local Access Lines Per-Line Assessment
1 $0.372 $0.28
3 $0.254 or 5 $0.22
6-10 $0.1911-25 $0.15
26-50 $0.1251-99 $0.09
100+ $0.07Furthermore, the Draft Decision proposes that, no later than September
30, 2006 and quarterly thereafter, all local and CMRS companies provide reports to the Department regarding the quarterly payments made to the state's Enhanced 911 Fund.The Department expects to render a final decision on this matter on May 24, 2006.
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