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 SEPARATE  STATEMENT  OF  COMMISSIONER  MICHAEL  J.  COPPS, 
 CONCURRING 
 Re:  Communications  Assistance  for  Law  Enforcement  Act  and  Broadband  Access  Services,  RM-  10865,  ET  Docket  No.  04-  295,  Notice  of  Proposed  Rulemaking  and 
 Declaratory  Ruling. 
 The  Commission  states  that  its  primary  policy  goal  in  this  proceeding  is  to  ensure  that  law  enforcement  has  all  of  the  resources  that  CALEA  authorizes  to  combat  crime  and 
 support  homeland  security.  This  is  as  it  should  be.  But  there  are  less  roundabout  ways  to  achieve  this  result  then  the  collection  of  tentative  conclusions  we  offer  here  and  there  are 
 better  ways  to  build  a  system  that  will  guarantee  judicial  approval. 
 I  believe  today’s  item  asks  many  of  the  right  questions,  but  I  also  believe  that  too  often  it  gets  the  reasoning  wrong.  It  is  flush  with  tentative  conclusions  that  stretch  the 
 statutory  fabric  to  the  point  of  tear.  If  these  proposals  become  the  rules  and  reasons  we  have  to  defend  in  court,  we  may  find  ourselves  making  a  stand  on  very  shaky  ground.  It 
 would  be  a  shame  if  our  reliance  on  thin  legal  arguments  results  in  the  CALEA  rules  being  thrown  out.  Neither  law  enforcement  nor  the  American  people  would  benefit  from 
 that  result. 
 To  me,  it  strains  credibility  to  suggest  that  Congress  intended  “a  replacement  for  a  substantial  portion  of  the  local  telephone  exchange”  to  mean  the  replacement  of  any 
 portion  of  any  individual  subscriber’s  functionality.  Capturing  VoIP  under  the  rubric  of  substantial  replacement,  ignoring  the  Ninth  Circuit’s  decision  in  Brand  X,  and  trying  to 
 slice  and  dice  managed  and  non-  managed  services  is  not  the  way  to  proceed  here.  Making  the  statute  bear  this  heavy  burden  denies  carriers,  equipment  manufacturers  and 
 technology  entrepreneurs  the  clarity  they  need.  But  more  importantly,  our  law  enforcement  authorities  need  that  clarity.  Those  whose  job  it  is  to  shield  us  from  harm 
 deserve  better.  So  I  don’t  agree  with  how  we  got  to  this  conclusion,  but  given  where  we  are,  we  have  the  responsibility  to  get  a  proceeding  going.  For  these  reasons,  I  will 
 concur,  but  I  hope  before  all  is  said  and  done  that  the  record  will  provide  better  counsel  and  our  final  decisions  will  put  us  on  a  sounder  footing. 
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