The following text is copyright 2005 by Network World, permission is hearby given for reproduction, as long as attribution is given and this notice is included.

Still more questions

By Scott Bradner

Last week I started exploring the recent FCC "First Report and Order and Further Notice of Proposed Rulemaking" (CALEA Order) (http://www.networkworld.com/columnists/2005/101005bradner.html) but there are far more questions to ask about the FCC document. Just to complicate matters the FCC released their final "Policy Statement on Broadband Internet Access" (http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-05-151A1.pdf) on the same day as they released the CALEA Order. Based on a press release I mentioned the "four principals" contained in the policy statement in my August 15th column (http://www.networkworld.com/columnists/2005/081505bradner.html).

I say that the principals complicate things because at least one of them, along with an aside in the CALEA Order seems to signal that a significant extension of the CALEA Order may be in our future. The beginning of the 2nd principal sounds good when it says that "consumers are entitled to run applications and use services of their choice." But things get murkier when the principal continues "subject to the needs of law enforcement" and the CALE Order says that a future order will address the identification of "future services" subject to CALEA. If that’s not enough, the FCC's arguments (see paragraph 44) on why VoIP should be covered by CALEA just as easily applies to just about any Internet application. This sounds like the FCC will order that law enforcement approve Internet applications before you can use them - that will surely drive innovation and make US applications attractive elsewhere in the world. (NOT!)

In the CALEA Order the FCC has specifically decided that the differentiation between telecommunications services and information services delineated in the Communications Act is null and void, seemingly because offering an information service involves telecommunications. (See paragraph 15.) A deft move, but one that I expect will subject to quite a bit of legal second guessing. Lots of things that I expect congress thought it was being clear about (for example what services are covered by CALEA) get muddy when you blow away that differentiation -- congress may not agree with the FCC's cavalier move.

The FCC leaves open the question whether small and rural broadband Internet providers and "providers of broadband networks for educational and research institutions should be exempt from CALEA." (Paragraph 49) This is just after concluding that some of these networks are private and thus exempt (see footnote 100) -- another confusion to resolve.

The FCC CALEA Order claims that the FCC has already told broadband Internet service providers "in great detail what these carriers would be required to do if they were subject to CALEA" in the previous notice of proposed rulemaking (http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-04-187A1.pdf). Actually what the FCC did was to tell carriers that TIA standard J-STD-025 was on the right track (this is a not a freely available document but you can buy it from TIA (http://www.tiaonline.org/standards/search_results2.cfm?document_no=J-STD-025).

The FCC says that CALEA applies to carriers offering services "for sale to the public" (paragraph 24). I wonder what that means for free WiFi hotspots (including the systems that some cities are working on) or Google's ad-supported service.

This Order does warn that the FCC will be issuing more orders in the future. Maybe next time there will be more answers than questions so that people, including carriers, will actually understand what they have to do and when (subject, of course, to the outcome of the totally predictable legal battles).

disclaimer: "Totally predictable " and "Harvard" are not generally used in conjunction and the above is my own opinion anyway.