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INDUSTRY URGES FBI TO CHANGE CALEA DEFINITIONS

WASHINGTON-The wireless industry last week urged the FBI to revise its definition of key words in rules implementing the digital wiretap act.

The Cellular Telecommunications Industry Association asked the FBI to reconsider its definition of the word “deployed” and to better define the word “impede.” The definitions are critical in determining who should pay for “significant upgrades or major modifications” to the telephone network. These upgrades were the subject of similar comments filed by the Personal Communications Industry Association.

Both CTIA and PCIA filed a lawsuit in April regarding the definition of deployed. The lawsuit is still pending in federal court.

The definition of deployed “falls short of CTIA’S understanding,” Michael F. Altschul, CTIA vice president and general counsel, said in a June 29 letter.

The FBI says any equipment that was not “operable and available for use” on Jan. 1 was obsolete and must be upgraded at carrier expense. The telecommunications industry disagrees, saying deployed refers to equipment “commercially available” on that date. The industry claims there may be instances where a carrier installed equipment but had not turned on that equipment as of Jan. 1, 1995. This equipment, according to industry, should be eligible for reimbursement. The FBI holds the opposite view.

CTIA believes the FBI is using a narrow definition of “deployed” to shift costs associated with implementing the Communications Assistance for Law Enforcement Act of 1994 to industry. CALEA allows the government to reimburse companies for deployed equipment upgrades as of Jan. 1, 1995.

The wireless industry repeatedly has asked for this date to be extended to allow for emerging personal communications services carriers to be reimbursed. PCS services did not exist in January 1995. The industry partially achieved that goal when the House of Representatives June 22 voted to extend the January 1995, date to Oct. 1, 2000. The Senate, however, is not expected to take up the legislation containing the extension.

CALEA contains a reimbursement exemption for all equipment that has been subjected to “significant upgrades or major modifications” since the January 1995 date. PCIA urged the FBI to reimburse for “fundamental or substantial change[s]” made to the network and when “it is reasonably foreseeable that the change will impede law enforcement’s ability to conduct surveillance.”

CTIA said it would like the FBI to clarify that impeded “means that law enforcement will be denied access to the content of communication.” This could mean the FBI would have to conduct wiretaps differently than they have in the past. For example, a switch to digital technology from analog will require law enforcement to conduct wiretaps in a carrier’s central office rather than with alligator clips on the local lines.

PCIA said in a statement its suggestions for definitional changes were necessary to “preserve the true meaning” of CALEA. The CTIA letter recognizes the FBI has incorporated some of CTIA’s past concerns regarding the issue of significant upgrades but “that didn’t stop us from having five pages of things to say,” Altschul told RCR.

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