Homeland security and wireless telecommunications: the continuing evolution of regulation.

• Author: Guttman-McCabe, Christopher

1. INTRODUCTION II. PUBLIC INTEREST REGULATION IN THE NAME OF SAFETY A. Introduction B. CALEA 1. CALEA Statutory Framework 2. Implementation on the Wireless Platform--Partnering Toward a Mandate a. CALEA, an Industry Standard Initiative? b. Law Enforcement Seeks to Revise the Industry Standard c. The "Partnership" Moves to the Courtroom 3. Packet-Based Implementation, Location Information, and Cost Concerns Add to the Uncertainty a. Compliance Issues b. Deadline Extensions c. Enforcement Regime d. Cost Recovery C. The E-911: To Partner or to Regulate? 1. Introduction 2. Delivering E-911 Service in a Wireless Environment a. Background b. Location Identification Alternatives 3. Regulating a Consensus a. The Role of the Consensus Agreement in Shaping E-911 Regulation b. The Cost-Recovery Problem III. THE EVOLUTION FROM PUBLIC SAFETY REGULATION TO HOMELAND SECURITY REGULATION A. Introduction B. NRIC: The Foundation for Public-Private Partnerships 1. NRIC's Historical Role in the Regulatory Process a. Preparing for Year 2000 b. Securing the Reliability of Telecommunications Networks 2. NRIC's Newest Focus--Wireless C. Critical Infrastructure Information Act Building the Foundation for Partnership 1. Creation of the Act 2. Facilitating Information Sharing D. Reporting Wireless Network Outages E. Wireless Priority Service: The Prototype of the Partnership Model 1. The Call for Wireless Priority Service 2. Partnering for Success--Waivers, Liability Protection, and Funding 3. Deployment 4. Exporting the Partnership Model F. The Legacy of the Second Phase of Homeland Security Regulations IV. PHASE III: IN THE NAME OF HOMELAND SECURITY--TO PARTNER OR NOT? V. CONCLUSION I. INTRODUCTION

   Since the grant of the first Commercial Mobile Radio Service CCMRS") license over twenty years ago, the wireless industry has grown from a service of convenience to one that is indispensable. What once was a device used for sporadic phone calls now is viewed by many Americans as a source of invaluable communication and security. Across the country, people use their wireless phones to make many, if not most, of their phone calls; some even have replaced their traditional land-line phones with wireless. Other people send emails or text messages, schedule appointments, browse the Internet, take pictures, listen to music, and even shop with their wireless phones. During the last twelve years, the number of wireless subscribers in the United States has grown from approximately 15 million to over 180 million, (1) while the annual minutes of use during the same time period have skyrocketed from below 20 billion to more than 1 trillion. (2) This rapid expansion has not been lost on government officials.

   As the wireless industry has matured, government officials have turned to the mobile phone as a way to make the United States safer. E-911, (3) the Communications Assistance for Law Enforcement Act ("CALEA"), (4) Wireless Priority Service ("WPS") (5) and Outage Reporting (6) all were initiated on the wireless platform in the name of safety. The Federal Communication Commission's ("FCC") implementation proceedings for these initiatives have differed markedly. Arguably, the differing FCC approaches significantly contributed to each initiative's outcome. Where the FCC fully partnered with industry, as in WPS, the service was operational in less than one year after being requested by government officials. Where government moved toward a more command and control approach, with multiple revisions to the rules, such as in E-911 and CALEA, the services still are not fully implemented. While blame can be spread across government and industry for the delays with E-911 and CALEA, an implementation model derived from the successful WPS approach bears review going forward. In an advanced technology area such as wireless, government goals may best be achieved by relying on industry experts as the technology is so sophisticated and constantly developing that the legislative and regulatory process at times cannot keep pace.

   This Article will review wireless Public Safety and Homeland Security initiatives in three distinct phases. The first, involving CALEA and E-911, represents a phase whereby the FCC would take into consideration industry concerns and opinions as it moved toward the ultimate goal of regulation. The second phase, involving WPS and Outage Reporting, and occurring simultaneously with adoption of the Critical Infrastructure Information Act ("CIIA"), (7) represents a regulatory and legislative movement to actually replace certain potential regulations with industry-initiated efforts and private-public partnerships. While not a full rejection of the first phase "regulatory mandate" approach, since Outage Reporting ultimately was mandated, this phase clearly represents a move by the FCC away from simple regulation and toward industry-government partnerships. Congress recognized this movement and adopted the CIIA to facilitate the sharing of information between industry and government.

   The third phase currently is underway and involves issues such as emergency alert services (8) and protection of critical infrastructure. (9) As more Americans carry wireless phones and wireless minutes of use continue to grow dramatically, and as wireless handset capabilities and networks continue to expand, the government's focus on wireless service is a certainty. The key question is what type of regulatory approach the government will choose for this third phase.

   E-911 and CALEA were an attempt by the FCC to regulate the telecommunication industry regarding very technical issues under difficult circumstances. The results have been far from perfect. WPS, also involving a very technical issue, was quickly and successfully implemented. Going forward, the industry obviously would like to convince the government that the best path toward achieving the government's wireless goals is to replicate the WPS model whenever possible.

   This Article will explore the evolution of Homeland Security regulation of the wireless industry. Section II will detail early regulation of the industry initiated in the name of public interest and safety. Additionally, Section II will provide a detailed overview of both E-911 and CALEA and will discuss government actions that arguably delayed deployment of these initiatives. Section III will explore the evolution from public interest regulation to Homeland Security regulation after September 11, 2001 ("9/11"). One key element of this evolution is government's call for private-public partnerships. In this phase we see regulators move from direct regulation of licensees, to a more market-oriented, partnership approach. Section III will address Priority Access Services, the FCC's efforts to monitor service disruptions and report outages to wireless networks; the Network Reliability and Interoperability Council ("NRIC"); and the CIIA. Section IV will investigate emerging wireless industry Homeland Security issues, including Emergency Alert Services and the protection of critical infrastructure. Section IV will also discuss the regulatory approach that the government should employ. Section V will conclude that during this time of great uncertainty--in terms of both the evolution of the wireless industry and the safety and protection of our country--the trend to partner with the industry to reach government's goals is sensible and will benefit the American public.

2. PUBLIC INTEREST REGULATION IN THE NAME OF SAFETY

   1. Introduction

      The wireless issues surrounding CALEA, E-911 services, Priority Access, and Outage Reporting all emerged from the traditional wireline environment. The migration to parallel "public interest and homeland security" requirements and functionalities on the wireless network began with CALEA and E-911. While establishment of both of these regulations on the wireless platform involved significant input from industry, provision of CALEA and E-911 never was intended to be voluntary. This Section traces the history of these early regulations from their wireline origins to the wireless mandate; addresses the elements of the proceedings, including the multiple FCC proceedings that arguably have led to uncertainty, (10) that may have contributing to over a decade-long development cycle for both initiatives. This Section argues that the delay in full deployment of these services is linked, at least in part, to the regulatory approach that the FCC chose and the regulatory uncertainty that followed.

   2. CALEA

      Enacted in 1994, CALEA (11) codifies the government's ability to obtain government access to communications systems. (12) Congress wrote CALEA to extend and clarify the previous obligations of telecommunications service providers to assist law enforcement with electronic surveillance orders. (13) CALEA not only preserved the government's existing rights to circuit-switched telecommunications intercept, it also extended law enforcement's intercept rights to digital and wireless telephony. (14) What Congress could not have anticipated was that CALEA, would lead to years of uncertainty and countless FCC and legal proceedings.

      1. CALEA Statutory Framework

         Section 103 of CALEA requires telecommunications providers (15) to ensure that their equipment, facilities, and services adhere to standards that enable law enforcement to pursue call intercepts, (16) pen registers, (17) and trap and trace technologies (18) for surveillance. (19) The carder cost for compliance with section 103 was capped at $500 million for pre-1995 upgrades; telecommunications carriers were allocated reimbursement funding to meet those costs. (20) Carders initially were required to be in compliance with CALEA by October 25, 1998. (21)

         In addition to mandating access for electronic surveillance, section 103(a)(4) requires that common carders preserve the privacy of their customers. Specifically, it commands that common carders should not disclose "call-identifying...