WASHINGTON-The Cellular Telecommunications Industry Association and the Personal Communications Industry Association, unable to get wireline carriers and manufacturers on board, moved forward on their own last week with a lawsuit against the Justice Department and the FBI over the implementation of the 1994 digital wiretap law.
CTIA and PCIA were prepared two weeks ago to bring litigation against the FBI and Justice Department, but held off in the hope the United States Telephone Association and the Telecommunications Industry Association would join them.
Sources said efforts were made to include USTA and TIA in the lawsuit. There are mixed accounts as to why that did not happen, however. The wireless industry said the other two associations had some issues different than those occupying the wireless industry. In addition, there was muffled criticism that USTA procedures for getting approval for litigation proved cumbersome and time consuming.
A USTA spokeswoman said her trade group did not sign onto the CTIA-PCIA lawsuit because of differences among landline telephone company members. For sure, wireless interests do not necessarily coincide with wireline interests.
If digital cellular carriers, like AT&T Wireless Services Inc., and the 2,000-plus new personal communications services licensees were eligible for digital wiretap upgrade reimbursement, which they are not under the Communications Assistance for Law Enforcement Act, there would be less money left to compensate the many landline telephone companies that are eligible.
A TIA spokesman said CALEA is important to equipment manufacturers but is not the priority that it is for wireless carriers.
The break in the coalition of CTIA, PCIA, USTA and TIA, which presented a united front in recent negotiations with Attorney General Janet Reno and FBI Director Louis Freeh, is expected to take some firepower away from the CALEA legal challenge, but not necessarily doom it.
USTA is considering filing its own lawsuit against the FBI over CALEA. In the meantime, the Baby Bell-dominated trade group has asked the Federal Communications Commission for a two-year extension of the Oct. 25 CALEA compliance deadline.
After failing to broker a compromise between the FBI and the telecom industry, Reno last month declared the industry CALEA standard deficient and petitioned the FCC to write digital wiretap rules.
CTIA and PCIA contend CALEA discriminates against PCS licensees that deployed systems after Jan. 1, 1995, and cellular telephone carriers that converted to digital technology after that date.
Under CALEA, neither category of license is eligible for any of the $500 million authorized to pay carriers for digital wiretap modifications. Wireless carriers not in CALEA compliance by Oct. 25 could face $10,000-a-day fines.
“Unfortunately, at every turn the FBI has used every means at their disposal to broaden their interpretation of CALEA as much as possible,” said Jay Kitchen, president of PCIA. “Now, they want wiretap capabilities that Congress did not prescribe and that have never been allowed by law-even for wiretapping.”
The wireless industry said it is committed to helping law enforcement but opposes nine wiretap features sought by the FBI that it believes go beyond legal limits of CALEA.
Privacy advocates agree and blame the telecom industry for conceding too much to the FBI already.
Wireless carriers claim the Oct. 25 compliance deadline is unreasonable and have criticized the FBI for delays in articulating technical requirements for digital wiretaps.
“Only the courts can tell the FBI they have gone too far,” said CTIA.
The lawsuit, which names Reno, Freeh and their respective agencies as defendants, argues the FBI wants to shift digital wiretap costs to carriers through a liberal interpretation of the law.
The FBI says the industry’s complaints are not about the law or technical requirements, but about money.
“The Congress was very clear that there should be cost sharing on the part of government and on the part of industry and that the Jan. 1, 1995, date was established and set forth in law as a determining factor for when the cost burden should shift,” said Barry Smith, an FBI spokesman.
Smith added, “The date was decided upon after consultation with industry. Industry, now having learned of what assistance capabilities are required (in 1994), could begin to factor in needs of CALEA at the R&D stage.”
Indeed, CALEA was compromise legislation agreed to by wireless and wireline carriers and manufacturers three-and-a-half years ago.
The provision in dispute reads: “The Attorney General may, subject to the availability of appropriations, agree to pay telecommunications carriers for all reasonable costs directly associated with modifications performed by carriers in connection with equipment, facilities and services installed or deployed on or before Jan. 1, 1995, to establish the capabilities necessary to comply with section 103.”
CTIA and PCIA argue Congress intended there be wiggle room on that date.
CTIA commissioned a poll conducted by Penn, Schoen & Berland Associates Inc., which found 70 percent of 940 persons interviewed by telephone, 478 of which were cellular subscribers, favor government rather than consumers pay for CALEA upgrades.
The association said the lawsuit reflects “the will of the people.”
