Updating the Intercarrier Compensation Regime To Eliminate Access Arbitrage, 40908-40915 [2020-13183]
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Federal Register / Vol. 85, No. 131 / Wednesday, July 8, 2020 / Rules and Regulations
PART 300—NATIONAL OIL AND
HAZARDOUS SUBSTANCES
POLLUTION CONTINGENCY PLAN
1. The authority citation for part 300
continues to read as follows:
■
Authority: 33 U.S.C. 1251 et seq.; 42 U.S.C.
9601–9657; E.O. 13626, 77 FR 56749, 3 CFR,
2013 Comp., p. 306; E.O. 12777, 56 FR 54757,
3 CFR, 1991 Comp., p. 351; E.O. 12580, 52
FR 2923, 3 CFR, 1987 Comp., p. 193.
Appendix B to Part 300—[Amended]
2. Table 1 of Appendix B to part 300
is amended by removing the entry ‘‘IL,’’
‘‘DuPage County Landfill/Blackwell
Forest’’, ‘‘Warrenville’’.
■
[FR Doc. 2020–14588 Filed 7–7–20; 8:45 am]
BILLING CODE 6560–50–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Parts 51, 54, 61, and 69
[WC Docket No. 18–155; FCC 20–79; FRS
16861]
Updating the Intercarrier
Compensation Regime To Eliminate
Access Arbitrage
Federal Communications
Commission.
ACTION: Order on reconsideration.
AGENCY:
In this document, the Federal
Communications Commission responds
to a petition for reconsideration of the
Access Arbitrage Order filed by Iowa
Network Services d/b/a Aureon
Network Services (Aureon) in Iowa.
Upon review of the record, we dismiss
Aureon’s Petition as procedurally
defective, and independently, and in the
alternative, deny it on substantive
grounds.
SUMMARY:
The denial of the petition for
reconsideration was effective June 11,
2020.
DATES:
The complete text of this
document is available for inspection
and copying during normal business
hours in the FCC Reference Information
Center, Portals II, 445 12th Street SW,
Room CY–A257, Washington, DC 20554,
or at the following internet address: At
https://docs.fcc.gov/public/
attachments/FCC-20-79A1.pdf.
FOR FURTHER INFORMATION CONTACT: For
further information, please contact
Victoria Goldberg, Pricing Policy
Division, Wireline Competition Bureau,
at Victoria.goldberg@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Order on
Reconsideration (Order) in WC Docket
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ADDRESSES:
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No. 18–155, adopted June 11, 2020 and
released June 11, 2020. The full text of
this document is available on the
Commission’s website at https://
docs.fcc.gov/public/attachments/FCC20-79A1.pdf.
I. Introduction
1. In the 2019 Access Arbitrage Order
(84 FR 57629, Oct. 28, 2019), we
tackled, once again, the troublesome use
of ‘‘free’’ conference calling, chat lines,
and certain other services operated out
of rural areas to take advantage of
inefficiently high access charges
allowed under the existing intercarrier
compensation regime. As we explained,
access stimulation schemes adapted to
shrinking end office termination charges
by taking advantage of access charges
that had not transitioned or were not
transitioning to bill-and-keep. As such,
these schemes were structured to ensure
that interexchange carriers (IXCs) would
pay high tandem switching and tandem
switched transport charges to accessstimulating local exchange carriers
(LECs) and to the intermediate access
providers chosen by those accessstimulating LECs. We also found that
the vast majority of access-stimulation
traffic was bound for LECs that
subtended two centralized equal access
(CEA) providers, Iowa Network Services
d/b/a Aureon Network Services
(Aureon) in Iowa and South Dakota
Network, LLC (SDN) in South Dakota.
2. To eliminate the financial
incentives to engage in access arbitrage,
we adopted rules making accessstimulating LECs—rather than IXCs—
financially responsible for the tandem
switching and transport service access
charges associated with the delivery of
traffic from an IXC to the accessstimulating LEC end office or its
functional equivalent. To facilitate the
implementation of the rules in Iowa and
South Dakota, we also modified the
section 214 authorizations for Aureon
and SDN to permit traffic terminating at
access-stimulating LECs that subtend
those CEA providers’ tandems to bypass
the CEA tandems.
3. Now Aureon seeks reconsideration
of the Access Arbitrage Order. In its
Petition, Aureon reiterates several of the
arguments it made on the record in the
Access Arbitrage proceeding. In
particular, Aureon objects to our
decision to adopt rules making accessstimulating LECs responsible for paying
for tandem switching and transport
services, and argues that we should
instead have adopted one of its
proposals—either to ban access
stimulation or to require consumers
placing calls to access-stimulating LECs
to pay their IXCs an additional charge
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for each such call. Aureon also objects
to our decision to modify its section 214
authorization, and it argues that we
should have addressed its cost and rate
complaints that are at issue in other
Commission proceedings. Upon review
of the record, we dismiss Aureon’s
Petition as procedurally defective, and
independently, and in the alternative,
deny it on substantive grounds.
II. Background
4. The Commission has been
combating access stimulation for more
than a decade. Traditionally, accessstimulating LECs relied on the existence
of high end office terminating switched
access rates in rural areas that allowed
them to increase their revenue by
inflating their terminating call volumes
through arrangements with entities that
offer high-volume calling services.
Because LECs entering traffic-inflating
revenue-sharing agreements were not
required to reduce their access rates to
reflect their increased volume of
minutes, access stimulation increased
access minutes-of-use and access
payments (at constant, per-minute-ofuse rates that exceed the actual average
per-minute cost of providing access). As
a result, IXCs and their customers had
to pay those inflated intercarrier
compensation charges.
5. In the 2011 USF/ICC
Transformation Order (76 FR 73830,
Nov. 29, 2011), the Commission found
that access-stimulating LECs were
‘‘realiz[ing] significant revenue
increases and thus inflated profits that
almost uniformly [made] their interstate
switched access rates unjust and
unreasonable.’’ The record showed that
the ‘‘total cost of access stimulation to
IXCs [had] been more than $2.3 billion
over the [preceding] five years’’ and that
‘‘Verizon estimate[d] the overall costs to
IXCs to be between $330 and $440
million per year.’’ The Commission
explained that all long distance
customers ‘‘bear these costs, even
though many of them do not use the
access stimulator’s services, and, in
essence, ultimately support businesses
designed to take advantage of today’s
above-cost intercarrier compensation
rates.’’ The Commission also found that
‘‘[a]ccess stimulation imposes undue
costs on consumers, inefficiently
diverting capital away from more
productive uses such as broadband
deployment,’’ and that it ‘‘harms
competition by giving companies that
offer a ‘free’ calling service a
competitive advantage over companies
that charge their customers for the
service.’’
6. The Commission sought to
eliminate the detrimental effect of
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access stimulation on all American
consumers by requiring LECs to refile
their interstate switched access tariffs at
lower rates if: (1) The LEC has a
revenue-sharing agreement; and (2) the
LEC either has (a) a 3:1 ratio of
terminating-to-originating traffic in any
month or (b) has more than a 100%
increase in traffic volume in any month
measured against the same month
during the previous year. These rules
were ‘‘narrowly tailored to address
harmful practices while avoiding
burdens on entities not engaging in
access stimulation.’’ The LECs that were
thereby identified as being engaged in
access stimulation were, for the most
part, required to change their tariffs for
end office access charges. A rate-ofreturn LEC was required to file its own
cost-based tariff under section 61.38 of
the Commission’s rules and could not
file based on historical costs under
section 61.39 of the Commission’s rules
or participate in the NECA trafficsensitive tariff. A competitive LEC was
required to benchmark its tariffed end
office access rates to the rates of the
price cap LEC with the lowest interstate
switched access rates in the state.
7. In the USF/ICC Transformation
Order, the Commission transitioned end
office terminating access charges to billand-keep. The Commission found that
the transition to bill-and-keep would
help reduce access stimulation by
reducing ‘‘competitive distortions
inherent in the intercarrier
compensation system and eliminating
carriers’ ability to shift network costs to
competitors and their customers.’’ At
the same time, the Commission
transitioned tandem switching and
transport charges to bill-and-keep for
price cap carriers when the terminating
price cap carrier owns the tandem in the
serving area, 47 CFR 51.907. For rate-ofreturn carriers, the Commission capped
terminating interstate and intrastate
transport charges at interstate levels.
8. In September 2017, in light of
developments that had occurred in the
relevant markets since the USF/ICC
Transformation Order, the Wireline
Competition Bureau (Bureau) sought to
refresh the record on several issues,
including the transition of the
remaining tandem switching and
transport charges to bill-and-keep. The
comments that the Bureau received
suggested that, in response to the
reforms adopted in the USF/ICC
Transformation Order, access
stimulation schemes had adapted to
shrinking end office termination charges
and sought to take advantage of access
charges that have not yet transitioned or
are not transitioning to bill-and-keep. It
appeared that access stimulation
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schemes had restructured to take
advantage of the tandem switching and
tandem switched transport charges that
IXCs pay to access-stimulating LECs.
The access stimulation schemes often
involved carriers that billed ‘‘excessive
transport charges, including lengthy
per-mile, per-minute charges to remote
areas on large volumes of stimulated’’
traffic.
9. In 2018, the Commission adopted a
Notice of Proposed Rulemaking (Access
Arbitrage Notice) (83 FR 30628, June 29,
2018) proposing to eliminate the
financial incentive to engage in access
arbitrage by giving access-stimulating
LECs two alternatives for connecting to
IXCs. First, the access-stimulating LEC
could choose to be financially
responsible for calls delivered to its
network; in this situation, IXCs would
no longer pay for the delivery of calls
to the access-stimulating LEC’s end
office or the functional equivalent.
Second, instead of accepting this
financial responsibility, the accessstimulating LEC could choose to accept
direct connections either from the IXC
or an intermediate access provider of
the IXC’s choice; this alternative would
permit IXCs to bypass intermediate
access providers selected by the accessstimulating LEC. The Commission also
sought comment on revising the access
stimulation definition, on moving all
traffic bound for an access-stimulating
LEC to bill-and-keep, and on additional
arbitrage schemes and ways to eradicate
them.
10. The Commission also sought
comment on whether it should modify
the section 214 authorizations of
Aureon and SDN, which were granted
almost 30 years ago. When the thenCommon Carrier Bureau adopted the
section 214 authorizations which
formed the regulatory foundation for the
CEA providers, it included a mandatory
use provision for Aureon, and an
apparent mandatory use provision for
SDN. These mandatory use provisions
required IXCs delivering terminating
traffic to a LEC subtending one of these
CEA tandems to deliver the traffic to the
CEA tandem rather than indirectly
through another intermediate access
provider or directly to the subtending
LEC. In the Access Arbitrage Notice, the
Commission proposed to eliminate the
mandatory use requirement as it
pertains to traffic terminating at accessstimulating LECs because, among other
things, delivery of such high volumes of
traffic was not the reason that CEA
providers were authorized.
11. The Commission received over
140 formal comments and ex parte
communications, and over 2,500
‘‘express’’ comments in response to the
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Access Arbitrage Notice. In the Access
Arbitrage Order, we found that the rules
adopted in the USF/ICC Transformation
Order resulted in a dramatic reduction
in costs to IXCs—from approximately
$330 million to $440 million annually
reported in 2010 to between $60 million
and $80 million annually reported in
2019—and ‘‘effectively discouraged
rate-of-return LEC access stimulation
activity.’’ We also found that since
terminating end office access rates had
transitioned to bill-and-keep they were
no longer driving access stimulation.
Instead, we found that access arbitrage
schemes were taking advantage of
terminating tandem switching and
transport service access charges which,
unlike end office switching charges, had
not yet transitioned or are not
transitioning to bill-and-keep. We also
found that access stimulators typically
operate in those areas of the country
where tandem switching and transport
charges remain high and are causing
intermediate access providers, including
CEA providers, to be included in the
call path. We further explained that the
tariffed tandem and transport access
charges of CEA providers with
mandatory use requirements served as a
price umbrella for similar services
offered by intermediate access providers
pursuant to commercial agreement, thus
inviting access arbitrage. The
intermediate access provider would
attract traffic to its facilities by offering
a small discount from the applicable
tariffed CEA rate.
12. In the Access Arbitrage Order, we
adopted three key rule modifications of
relevance here. First, to reduce the use
of the access charge system to subsidize
high-volume calling services, we
adopted rules making access-stimulating
LECs—rather than IXCs—financially
responsible for the tandem switching
and tandem switched transport access
charges for the delivery of terminating
traffic from IXCs to the accessstimulating LECs’ end offices or their
functional equivalents. Second, we
modified the definition of access
stimulation to include two new
alternative triggers without a revenuesharing component. Third, to facilitate
our new rules, we modified the Aureon
and SDN section 214 authorizations to
eliminate the mandatory use
requirements insofar as they apply to
traffic being delivered to accessstimulating LECs. We therefore enabled
‘‘IXCs to use whatever intermediate
access provider an access-stimulating
LEC that otherwise subtends Aureon or
SDN chooses.’’ We reasoned that our
action would ‘‘allow IXCs to directly
connect to access-stimulating LECs
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where such connections are mutually
negotiated and where doing so would be
more efficient and cost-effective.’’
13. In November 2019, Aureon filed
its Petition seeking reconsideration of
the Access Arbitrage Order. Aureon
requests that we: (a) Reconsider our
rules requiring access-stimulating LECs
to pay tandem switching and transport
charges and instead either ban access
stimulation or, in the alternative,
require callers to high-volume calling
services to pay for additional fees to
cover the costs of the IXCs’ access
charges; (b) retain the mandatory use
provisions of the section 214
authorizations for Aureon and SDN; and
(c) reconsider what Aureon
characterizes as additional financial
burdens on CEA providers created by
our reforms.
14. We released a Public Notice
announcing the filing of the Petition and
established deadlines for Oppositions
and Replies to the Petition. We received
Oppositions from AT&T, Verizon and
Sprint, and a Reply from Aureon.
15. Any interested party may file a
petition for reconsideration of a final
action in a rulemaking proceeding, 47
CFR 1.429(a). Reconsideration ‘‘may be
appropriate when the petitioner
demonstrates that the original order
contains a material error or omission, or
raises additional facts that were not
known or did not exist until after the
petitioner’s last opportunity to present
such matters,’’ 47 CFR 1.429(b).
Petitions for reconsideration that do not
warrant consideration by the
Commission include those that: ‘‘[f]ail
to identify any material error, omission,
or reason warranting reconsideration;
[r]ely on facts or arguments which have
not been previously presented to the
Commission; [r]ely on arguments that
have been fully considered and rejected
by the Commission within the same
proceeding;’’ or ‘‘[r]elate to matters
outside the scope of the order for which
reconsideration is sought,’’ 47 CFR
1.429(l)(1)–(3), (5). The Commission
may consider facts or arguments not
previously presented if: (1) They ‘‘relate
to events which have occurred or
circumstances which have changed
since the last opportunity to present
such matters to the Commission’’, 47
CFR 1.429(b)(1); (2) they were
‘‘unknown to petitioner until after
[their] last opportunity to present them
to the Commission, and . . . could not
through the exercise of ordinary
diligence have learned of the facts or
arguments in question prior to such
opportunity,’’ 47 CFR 1.429(b)(2); or (3)
‘‘[t]he Commission determines that
consideration of the facts or arguments
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relied on is required in the public
interest,’’ 47 CFR 1.429(b)(3).
III. Discussion
16. We consider and dismiss Aureon’s
Petition as procedurally deficient.
Separately, we deny the Petition on the
merits. In the discussion below, we
address the Petition’s procedural defects
and then turn to the shortcomings of
Aureon’s substantive arguments.
A. Aureon’s Petition Is Procedurally
Defective
17. Aureon fails to meet the standard
to justify reconsideration. It does not
identify any material error or omission
in the Access Arbitrage Order; raise
facts that were not known or did not
exist before Aureon’s last opportunity to
present such matters in the underlying
rulemaking; or demonstrate that
reconsideration would be in the public
interest. Instead, Aureon’s Petition
suffers from numerous procedural
flaws—repeating arguments that Aureon
previously raised and to which we
responded, raising ‘‘new’’ arguments
that it could have made in the
underlying proceeding, and presenting
arguments that are beyond the scope of
this proceeding—that warrant dismissal,
47 CFR 1.429(l).
18. The Commission Need Not
Address Petitions that Repeat Previous
Arguments. Our rules and precedent are
clear that we need not consider
petitions for reconsideration, such as
Aureon’s, that ‘‘merely repeat arguments
we previously . . . rejected’’ in the
underlying order. Nonetheless, Aureon
focuses its Petition on arguments it
already made. Most notably,
notwithstanding Aureon’s claim to the
contrary, in the Access Arbitrage Order,
we fully considered and rejected its
recommendations to ban access
stimulation or to allow IXCs to charge
users of access-stimulating services for
the access costs associated with those
services.
19. We recognize that we are required
to ‘‘ ‘consider responsible alternatives to
[our] chosen policy and to give a
reasoned explanation for [our] rejection
of such alternatives.’ ’’ At the same time,
while ‘‘an agency ordinarily must
consider less restrictive alternatives and
should explain its reasons for failing to
adopt such alternatives,’’ we are
required only to provide an explanation
of our decision to reject any particular
proposal.
20. With respect to Aureon’s proposal
to ban access stimulation, in the Access
Arbitrage Order, we recognized
Aureon’s proposal and found, as the
Commission concluded in the USF/ICC
Transformation Order, that a ban would
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be an overbroad solution. As we
explained, we therefore opted to
‘‘prescribe narrowly focused conditions
for providers engaged in access
stimulation’’ that strike an ‘‘appropriate
balance between addressing access
stimulation and the use of intermediate
access providers while not affecting
those LECs that are not engaged in
access stimulation.’’ Thus, we fully
considered and rejected Aureon’s
proposal.
21. With respect to Aureon’s proposal
to require IXCs to charge accessstimulation service customers the cost
of related access charges, we explicitly
addressed Aureon’s previous, more
specific proposal that we allow IXCs to
charge a penny a minute to their
customers making calls to accessstimulating LECs. We gave two reasons
for rejecting Aureon’s proposal on the
merits, explaining that: (1) There was no
evidence to suggest that accessstimulation calls cost a penny per
minute, ‘‘so the proposal would simply
trade one form of inefficiency for
another;’’ and (2) ‘‘such an overbroad
proposal . . . would confuse consumers
and unnecessarily spill into, and
potentially affect, the operation of the
more-competitive wireless
marketplace.’’ Aureon now claims that
it never intended to propose charging
customers ‘‘a specific price for the call,
such as a penny’’ and insists that its
intent was simply to suggest charging
customers ‘‘something other than zero
for a call that has been falsely
represented in the past as being ‘free.’’’
Putting aside Aureon’s attempt to recast
its proposal, Aureon fails to persuade us
that our consideration of the concept of
IXCs charging end users for placing calls
to access-stimulating LECs was
insufficient.
22. We also fully considered and
rejected another request that Aureon
now repeats: That we not modify its
section 214 certification. As we
explained when we rejected this
request, Aureon provided no supporting
detail for its claim that modifying its
section 214 authorization would
negatively affect its ability to provide
services in rural areas and to maintain
its network. We further explained that
‘‘[o]ur decision to permit traffic being
delivered to an access-stimulating LEC
to be routed around a CEA tandem does
not affect traffic being delivered to nonaccess-stimulating LECs that remain on
the CEA network, and will not impact
Aureon’s ability to serve rural areas,
contrary to Aureon’s concern.’’ As these
arguments have been ‘‘fully considered
and rejected by the Commission,’’ they
are procedurally improper here.
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23. Aureon also repeats various other
arguments that we addressed in the
Access Arbitrage Order. For example,
Aureon again claims that our access
arbitrage rules shift costs to ‘‘a few
thousand rural customers paying for
access stimulation services that they
never use, as the LECs recover their
costs from their rural end users.’’ The
claim is incorrect. As we explained in
the Access Arbitrage Order, our new
rules ‘‘shift the recovery of costs
associated with the delivery of traffic to
an access-stimulating LEC’s end office
from IXCs to the LEC.’’ And, under our
new rules, carriers may respond to the
shifting financial responsibilities ‘‘in a
number of ways—including in
combination—such as by changing enduser rates,’’ selecting less costly
intermediate access providers or traffic
routes, or seeking out other revenue
sources, such as ‘‘through an
advertising-supported approach to
offering free services or services
provided at less than cost.’’
24. Aureon also rehashes its previous
argument that under the new rules, large
IXCs ‘‘could engage in arbitrage with
respect to wholesale IXC transport and
transit service.’’ In the Access Arbitrage
Order, we found ‘‘no merit’’ to these
same arguments because Aureon failed
to explain how IXCs would accomplish
such arbitrage. As we explained, our
new rules did not shift arbitrage
opportunities to IXCs or to any other
providers.
25. Aureon also repeats the argument
that our new rules could lead to call
completion problems. In the Access
Arbitrage Order, we concluded that an
intermediate access provider may
consider its call completion duties
satisfied ‘‘once it has delivered the call
to the tandem designated by the accessstimulating LEC.’’ Finally, Aureon again
raises concerns about the ‘‘demise’’ of
its network without access-stimulating
LECs (one that it does not attempt to
square with its request to outlaw access
stimulation). Aureon raised these
concerns during the rulemaking
proceeding and we dismissed them
because Aureon provided no data to
support its claims.
26. Apparently recognizing this
weakness in its Petition, Aureon
contends that we should exercise our
discretion and consider its Petition even
though it repeats arguments we have
already rejected. Yet, to support this
contention, Aureon relies on three
Commission orders denying other
petitions for reconsideration. We find
none of the proffered orders persuasive.
The first order is simply inapposite—it
does not even discuss review of
repetitious petitions for reconsideration.
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The second order denies the petitions at
issue in part because they were
repetitive. In the third order, the
Commission considers a repetitious
petition for reconsideration, as Aureon
would have us do here, but ultimately
denies the petition because the
petitioner failed to demonstrate any
material error or omission or to raise
any new facts, and found that the new
arguments were unpersuasive. Thus, the
orders Aureon cites do little to advance
its cause. Certainly nothing in those
orders requires us to review, much less
grant, Aureon’s Petition to the extent it
merely repeats arguments it made in the
underlying proceeding.
27. The New Arguments That Aureon
Now Makes Should Have Been Known
to It. Aureon complains for the first time
about possible costs it may incur related
to compliance with the switch in
financial responsibility for tandem
switching and transport services
provided to access arbitrage customers,
claiming that it would be an
‘‘administrative nightmare’’ if LECs
change their status from accessstimulating LECs to non-accessstimulating LECs—which it contends
incorrectly could take place monthly, 47
CFR 61.3(bbb)(2)–(3). Aureon also
predicts an increase in billing disputes
related to the Order. Aureon failed to
raise these challenges in its various
filings in the underlying proceeding,
and it has provided no explanation why
it could not have raised these issues
before the Access Arbitrage Order was
adopted.
28. Also for the first time, Aureon
provides data purporting to illustrate
that ‘‘Aureon would be prevented from
charging a cost-based rate above the
competitive LEC benchmark rate if
access stimulation traffic were removed
from the CEA network.’’ Certainly,
Aureon should have been able to
provide such illustrative data during the
rulemaking proceeding. The application
of the competitive LEC benchmark rule
is not new, and Aureon was on notice
of our proposed course of action with
respect to access stimulation. Aureon
has provided no explanation as to why
it could not have provided this financial
data during the rulemaking proceeding
(nor, again, how its argument here
squares with its request to outlaw access
arbitrage), 47 CFR 1.429(l); 47 U.S.C.
405.
29. Aureon Seeks Reconsideration
Based on Issues Beyond the Scope of
This Proceeding. We also find that
Aureon’s Petition is procedurally
deficient and subject to dismissal
insofar as it requests that on
reconsideration we address the rates
that Aureon can charge as a CEA
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provider. Aureon complains about ‘‘rate
differentials,’’ the Commission’s
‘‘accounting directive’’ for CEA service,
and the rate caps that have applied to
Aureon since before the Access
Arbitrage Order. Aureon also asserts
that the reforms adopted in the Access
Arbitrage Order will prevent it from
recovering its costs—because of the
preexisting cap on its rates—and
complains that those same reforms
‘‘do[ ] not allow Aureon to earn the
authorized rate of return or to charge
just and reasonable rates.’’ We dismiss
these arguments because they are
outside the scope of the proceeding. As
we explained in the Access Arbitrage
Order, the rules we adopted in that
Order ‘‘do not affect the rates charged
for tandem switching and transport.’’
Likewise, nothing in the Access
Arbitrage Order affects the method that
Aureon must use to calculate its rates.
Indeed, the issue of Aureon’s rates and
the proper method of calculating those
rates are the subject of two entirely
separate proceedings.
B. Aureon’s Petition Fails on the Merits
30. Although Aureon’s Petition
warrants dismissal on procedural
grounds alone, we also find that the
Petition fails on the merits. This failure
provides an alternative and independent
basis for rejecting the Petition. Contrary
to Aureon’s claims, the rules we
adopted in the Access Arbitrage Order
accomplish our goal of removing the
financial incentives to engage in access
arbitrage and reducing the use of
intercarrier compensation to provide
implicit subsidies to services offered by
access-stimulating LECs. It was also
reasonable for us to find that the rules
we adopted are more targeted and more
effective than a blanket ban on access
stimulation or a rule allowing IXCs to
charge consumers more for calls to
access-stimulation services. Finally, our
decision to modify Aureon’s section 214
authorization was supported by the
record and furthers our goal of shifting
financial responsibility for access
stimulation to the access-stimulating
LEC.
1. The Reforms Adopted in the Access
Arbitrage Order Are Consistent With the
Commission’s Policy Goals
31. Our Action Removes Financial
Incentives to Engage in Access
Arbitrage. In both the Access Arbitrage
Notice and the Access Arbitrage Order,
the Commission was clear that the
fundamental goal in this proceeding was
to remove financial incentives to engage
in access arbitrage. In the USF/ICC
Transformation Order, the Commission
successfully sought to reduce the cost of
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access arbitrage by defining access
stimulation and by capping the
terminating end office rates charged by
access-stimulating competitive LECs.
The Commission also recognized that
the transition of all terminating end
office charges to bill-and-keep would
further reduce the cost of access
arbitrage to IXCs and their customers. In
the Access Arbitrage Order, we found
that the Commission’s existing rules
worked well and reduced the annual
cost of access arbitrage to IXCs, and by
extension their customers, from between
$330 million to $440 million annually
to between $60 million to $80 million
annually. We explained that, as
terminating end office rates fell, those
charges no longer drove accessstimulation schemes. Despite this
history, Aureon seeks to attack our
decisions in the Access Arbitrage Order,
first by arguing that ‘‘years of experience
have shown that [reforming] the
intercarrier compensation approach
simply does not work’’ to curb access
arbitrage. This argument ignores the
evidence presented in the Access
Arbitrage Order demonstrating that the
rules adopted in the USF/ICC
Transformation Order substantially
reduced access arbitrage.
32. Aureon also ignores the very real
benefit of the rules we adopted in the
Access Arbitrage Order. By making
access-stimulating LECs financially
responsible for the rates charged to
terminate traffic to their end offices or
functional equivalents, we now prevent
access-stimulating LECs from passing
the costs of their services—or the
services of their high-volume calling
provider partners—on to IXCs and, by
extension, the public at large. This may,
in turn, cause ‘‘users to cease using
those services, and cause accessstimulating LECs or their [high-volume
calling provider partners] to terminate
the calling services altogether.’’ This
outcome is more than just hypothetical.
While most of the rules have only been
in effect since November 2019, we have
already received letters from several
entities stating that they are exiting the
access stimulation business. Aureon
neither acknowledges these
developments nor provides any new
evidence demonstrating that IXCs are, or
even could, engage in the type of
hypothetical arbitrage it theorizes about.
Aureon argues that our new rules are
ineffective at reducing access
stimulation, citing the behavior of two
companies that Aureon believes are
taking steps to evade our new rules. We
stand ready to address and prevent any
efforts to circumvent our new rules.
Indeed, the Wireline Competition
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Bureau has already initiated one such
investigation. However, efforts to
circumvent our rules do not undermine
our reasonable predictive judgment that
the rules adopted in the Access
Arbitrage Order will help eliminate ‘‘the
financial incentives to engage in access
arbitrage,’’ a prediction confirmed by
the number of companies that have
notified us that they have left the access
stimulation business. In sum, Aureon’s
Petition does not support its claim that
our new rules work at cross-purposes
with our goal.
33. Our Actions Address the Use of
Intercarrier Compensation to Provide
Implicit Subsidies to Services Offered
by Access-Stimulating LECs. As we
explained in the Access Arbitrage Order
and Aureon has now acknowledged,
prior to the Access Arbitrage Order, ‘‘it
was the IXCs’ customers that subsidized
the access costs incurred for a small
subset of customers to use an access
stimulating service.’’ Under our new
rules, a significant benefit of requiring
access-stimulating LECs to pay for
tandem switching and transport is that
doing so ends the use of intercarrier
compensation to implicitly subsidize
access stimulation services. Yet, Aureon
claims that our access arbitrage rules
shift costs to ‘‘a few thousand rural
customers paying for access stimulation
services that they never use, as the LECs
recover their costs from their rural end
users.’’ This argument makes a number
of unsupported assumptions. First, it
assumes that access-stimulation
schemes will continue to operate out of
rural areas, despite the loss of the
financial incentives in the form of
intercarrier compensation revenue that
led them there in the first place. Second,
it assumes that access-stimulating LECs
have customers not engaged in accessstimulation schemes and that those
customers would remain customers
should they face higher prices. Finally,
it assumes that access-stimulating LECs
are charging or will charge their nonaccess-stimulation customers more to
cover their new costs and fails to
consider the possibility that accessstimulating LECs will instead pass
tandem switching and transport charges
through to the high-volume calling
service providers that cause the LECs to
incur those costs. The latter possibility
properly aligns financial incentives by
shifting costs to the cost causers, which
is what we set out to accomplish. And,
despite significant evidence that accessstimulating LECs have already exited
the access-stimulation business, we
have no evidence that our rules have led
to an increase in rural rates and we have
no evidence that future departures from
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the access-stimulation business will
cause such increases.
34. There Is No Reason to Think that
the Access Arbitrage Order Will Have a
Negative Impact on the Commission’s
Goal of Fostering Competition in Rural
Areas. Aureon further argues that
amending its section 214 authorization
to exempt traffic delivered to accessstimulating LECs from the mandatory
use provision of that authorization is
inconsistent with a goal of that section
214 authorization: Encouraging long
distance competition in rural areas.
Aureon does not explain how
modification of its section 214
authorization to eliminate the
mandatory use requirement for traffic
delivered to access-stimulating LECs
will decrease IXC competition. Rather,
Aureon suggests that loss of accessstimulation traffic will lead to the
‘‘demise’’ of its network, which it argues
will have a deleterious impact on
competition in rural areas. Yet, in its
Petition, Aureon does not explain why
it thinks the loss of access-stimulation
traffic will lead to its demise, nor does
it attempt to reconcile the inconsistency
between its advocacy for an order on
reconsideration that prohibits access
stimulation and its apparent claim that
loss of access-stimulation traffic will
cause the Aureon network to collapse
and eliminate long distance competition
in rural Iowa. Furthermore, there is no
evidence that access-stimulation traffic
existed when Aureon received its
section 214 authorization. Indeed, the
section 214 authorization was granted
based on the Commission’s
understanding that the CEA network
would be supported primarily by
intrastate traffic, not interstate traffic.
Aureon also fails to acknowledge that
another CEA provider, Minnesota
Independent Equal Access Corporation,
does not have a mandatory use
requirement in its authorization and
that SDN has not challenged the
modification of its section 214
certification in the Access Arbitrage
Order. Both facts suggest that the
mandatory use requirement is not
necessary for the successful operation of
a CEA network.
2. The Commission Justifiably Rejected
Aureon’s Proposals
35. We continue to find no merit to
Aureon’s position that either its
proposed ban on access stimulation or
its proposal to allow IXCs to charge end
users for some of the access costs
required to complete a call to a highvolume calling service would be better
than the more nuanced approach we
took in the Access Arbitrage Order.
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36. In its Petition, Aureon argues that
by failing to ban access stimulation, the
new rules will require it to ‘‘maintain
large and potentially unused capacity to
accommodate potential ‘whipsawing’ of
traffic between networks.’’ Aureon fails
to explain, however, how these issues
stem from our access arbitrage rules and
in its Petition provides no data—such as
forecasted capacity requirements or the
cost to Aureon of engineering its
network to accommodate the alleged
capacity requirements—to support its
claims. We fail to see how Aureon’s
allegations about its capacity issues are
attributable to the new access arbitrage
rules. If anything, the issue of capacity
on Aureon’s network likely predates the
Access Arbitrage Order.
37. We are also unpersuaded by
Aureon’s argument that banning access
stimulation would be preferable to our
current rules because under the new
rules, rural end users will pay for access
stimulation services, even if those
consumers don’t use the services. We
disagree with Aureon’s conclusion.
Aureon does not attempt to square these
unsupported assertions with the
fundamental premise of the rules
adopted in the Access Arbitrage Order:
To make the access-stimulating LEC—
not rural end users—financially
responsible for the rates charged for
stimulated traffic terminated to the
LEC’s end office or functional
equivalent. We agree with AT&T that,
contrary to Aureon’s assertions, ‘‘the
bulk of the access termination costs will
be borne by access stimulation LECs, the
[free calling partners] or their
customers—not by rural customers who
do not use the services.’’
38. Moreover, we agree with AT&T
and Sprint that Aureon’s proposed
‘‘ban’’ would be unlikely to be effective.
Aureon proposed to define ‘‘High Call
Volume Service’’ as a high call volume
operation marketed as free to the end
user and to ban services that met that
definition. Aureon also proposed a
blanket prohibition on carrying traffic
associated with a high-volume calling
operation ‘‘with a rebuttable trigger of
100,000 minutes per month to a single
telephone number whereby calls to that
number would be prohibited.’’ Aureon
does not explain how we would
effectively monitor whether a highvolume calling service is marketed as
free to end users, however. Nor does
Aureon explain how we would enforce
a prohibition on calls to a single number
that exceed 100,000 minutes in a given
month. If the Commission could not
effectively identify whether a carrier is
providing service to a ‘‘high call volume
operation,’’ it would not be able to
enforce the proposed prohibition against
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carrying traffic for such providers. In
addition, carriers could circumvent
Aureon’s proposed minutes-of-use
trigger by operating enough telephone
numbers for a particular access
stimulation scheme to keep the call
volumes for a single telephone number
below the 100,000-minute threshold,
and if they did so, it appears that
Aureon would have the same issue with
managing capacity requirements and
call completion. Aureon did not grapple
with these issues in its comments
during the rulemaking proceeding and
makes no effort to do so in its Petition
or its Reply.
39. Relatedly, Aureon fails to provide
any explanation as to how or why a ban
would be less restrictive than the
narrowly focused rules we adopted.
Confusingly, Aureon asserts that ‘‘[a]ll
evidence points to Aureon’s proposed
[ban] as satisfying both the FCC’s
existing policy . . . and being less
restrictive and burdensome because no
sea-change would be required with
regard to how . . . the
telecommunications industry operated’’
prior to the adoption of our new access
arbitrage rules. But, surely a complete
ban on access stimulation (if it were
successful) would result in less traffic
being delivered from IXCs to CEA
providers, not ‘‘higher traffic volumes’’
as Aureon suggests. Aureon likewise
provides no information about the
alleged ‘‘sea-change’’ wrought by our
new rules beyond saying that it has
always been the norm for IXCs to pay
access charges. Simply because ‘‘it has
always been done that way’’ does not
mean that the Commission cannot
change course. And a change in course
was warranted here to reduce the LECs’
incentives to engage in access
stimulation.
40. Aureon also fails to substantively
support its claim that our new rules
create an ‘‘administrative nightmare.’’
Aureon complains that it will incur
billing costs because LECs could
become access stimulators one month
and then cease to be access stimulators
the next, resulting in the potential for
billing disputes. Aureon provides no
data to support its concerns about
billing costs. Nor does it provide any
data about how many LECs would
change their status monthly, or even
how many access-stimulating LECs
currently subtend its network.
Moreover, Aureon fails to address the
fact that our rules prevent accessstimulating LECs not engaged in
revenue sharing from changing their
status more than once every six months,
47 CFR 61.3(bbb)(2)–(3). In addition,
Aureon does not explain why the
reforms adopted in the Access Arbitrage
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Order would lead to increased billing
disputes.
41. Aureon claims that the rules
requiring access-stimulating LECs to pay
Aureon for all terminating CEA services
are ‘‘overly broad’’ because the CEA
traffic will be ‘‘some mix of traditional
traffic and access stimulation traffic.’’
Aureon’s concerns are misplaced. We
clearly and intentionally made sure that
our rules covered both ‘‘traditional’’ and
access-stimulation traffic, shifting
‘‘financial responsibility for all tandem
switching and transport services to
access-stimulating LECs.’’ As a result, it
should make no difference to Aureon
whether the traffic it delivers to an
access-stimulating LEC consists entirely
of access-stimulation traffic, non-access
stimulation traffic, or a mix of both.
42. Finally, Aureon argues that the
Commission has, ‘‘in analogous
contexts, determined that it was not
overly broad to prohibit certain types of
behaviors.’’ This argument falls far short
of justifying Aureon’s requested
reconsideration. Simply because the
Commission has chosen to ban certain
unrelated practices in unrelated
proceedings does not mean that we were
bound to ban a particular practice in
this particular proceeding.
43. Aureon’s proposal that we allow
IXCs to pass through the costs of access
stimulation to customers calling accessstimulating LECs also fails on the
merits. Aureon argues that allowing
pass-through charges to the users of
high-volume calling services sends the
correct pricing signals whereas, as
Aureon implies, the rules adopted in the
Access Arbitrage Order do not. But
Aureon still does not provide any data
about what the pass-through cost could
or should be, it does not explain why it
provided no such data in the underlying
proceeding, nor does it explain how we
could reach a decision about what
would be an appropriate charge without
such data. Our approach, which places
financial responsibility on the accessstimulating LECs, is simpler to
administer and avoids the difficulty of
attempting to calculate a pass-through
charge absent relevant data, which, as
we recognized in the Access Arbitrage
Order, is lacking.
44. In any event, contrary to Aureon’s
assertion, consumers are ‘‘provided with
more-accurate pricing signals for highvolume calling services’’ under our new
rules. In the Access Arbitrage Order, we
moved the cost of terminating access
charges for stimulated traffic from IXCs
to access-stimulating LECs, thereby
aligning the cost of using high-volume
calling services closer to the actual users
of those services. As AT&T aptly
explains, access-stimulating LECs and
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high-volume calling service providers
now ‘‘have a choice to either absorb the
terminating access cost themselves, or
pass them along to the users of free
calling services.’’ If access-stimulating
LECs decide to pass those costs through
to the users of those calling services,
those services will no longer be free.
But, in either case, end users will
receive more accurate indications of the
price of the services they use. Our
approach is also more consistent with
cost causation principles because it
aligns the ‘‘costs associated with traffic
destined for ‘free’ conference call
services to the carrier directly serving
the free conference call company rather
than to all the carriers that deliver
conference call traffic that originates all
over the world.’’ We agree with Sprint
that ‘‘[a]ligning costs this way . . .
requir[es] the final carrier—the cost
causer access stimulating LEC (and
ultimately its customers, the conference
call company)—to bear the costs of
decisions they make as to where to
place the switch that is serving the
conference call company.’’ Thus, we
agree with commenters that Aureon has
not shown that requiring IXCs to pass
through costs to end users would be
more effective at eliminating access
arbitrage than our chosen approach. We
also reaffirm our conclusion that the
rules we adopted in the Access
Arbitrage Order provide customers with
more accurate pricing signals than they
had before our Order.
3. Aureon Fails To Show That Our
Decision To Modify Its Section 214
Authorization Should Be Reconsidered
45. We also deny on the merits
Aureon’s request that we reconsider the
modifications to Aureon’s and SDN’s
section 214 authorizations that now
explicitly permit IXCs terminating
traffic at an access-stimulating LEC that
subtends either of their CEA tandems to
use routes other than those CEA
tandems to reach the access-stimulating
LEC. Aureon raises several objections,
but none have merit.
46. To begin with, the reforms
adopted in the Order do not prohibit
any access-stimulating LEC from
choosing Aureon or SDN as its
intermediate carrier and paying them to
provide service. Second, Aureon argues
that we did not consider how changing
the mandatory use policy would affect
competition for long distance services.
Although it is not clear, Aureon’s
argument seems to be based on a
prediction that a reduction of accessstimulation traffic on the Aureon and
SDN networks as a result of the Access
Arbitrage Order will lead to Aureon’s
demise. Relatedly, Aureon complains
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that it will be harmed because it relied
on the grant of its section 214
authorization in building and
maintaining its network. These
arguments make little sense for a
number of reasons. First, the Order does
not eliminate the mandatory use
requirements as they may apply to
traffic terminating at non-accessstimulating LECs. The mandatory use
requirements continue to apply to IXCs
delivering traffic to dozens of nonaccess-stimulating LECs that subtend
Aureon’s and SDN’s tandems. Third,
although we previously dismissed
Aureon’s concerns about the financial
impact on Aureon in the Arbitrage
Order because Aureon provided no data
to support its claims, Aureon once again
failed to provide data supporting its
concerns in the Petition.
47. Aureon raised concerns about the
‘‘demise’’ of its network in the
underlying rulemaking, and we
dismissed those concerns because
Aureon provided no data to support its
concerns. AT&T points out that merely
repeating those arguments without
‘‘put[ting] forward any supporting data’’
does not provide a basis for
reconsideration. While Aureon did
provide some data in its Reply, it uses
the data to spin a tale about the
hypothetical removal of accessstimulation traffic. Such speculation
cannot justify Aureon’s request for
reconsideration. Aureon provides three
tables showing select information from
its most recent tariff filing. It
manipulates these tables to show
revenue shortfalls if access-stimulation
traffic were to leave its network.
However, there is evidence in the record
that a significant amount of traffic
already bypasses Aureon’s CEA tandem.
In addition, Aureon bases its
calculations on data provided by AT&T
in a different proceeding, using AT&T’s
data to calculate the percentage of
revenues Aureon may lose in its
hypothetical. But Aureon never
confirms whether AT&T’s data is
correct. So it is difficult to determine,
on the basis of the data submitted, the
actual, verifiable effect of the Access
Arbitrage Order on Aureon’s network.
Furthermore, while Aureon appears to
claim that the Access Arbitrage Order
may lead to its demise by taking accessstimulation traffic off its network,
Aureon does not even attempt to square
that claim with its argument that access
stimulation should be banned. If
Aureon’s proposed ban were successful,
Aureon would also stop carrying access
stimulation traffic, which would have
the same financial impact that Aureon
alleges the Access Arbitrage Order will
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have. As Verizon points out, banning
access stimulation ‘‘would likely cause
the same, or even greater, reduction in
traffic on CEA providers’ networks’’ as
the section 214 modifications.
48. Next, Aureon claims that the
Commission ‘‘authorized the mandatory
use policy to . . . bring advanced
services to rural areas’’ and therefore its
mandatory use authority should not be
replaced. Aureon is not able to offer
support for this claim because the
Aureon Section 214 Order says nothing
about advanced services, which was not
a commonly used term when the thenCommon Carrier Bureau adopted that
Order in the 1980s. Instead, the
Common Carrier Bureau found that the
mandatory use policy was justified by
the revenues that would be generated by
requiring Northwestern Bell to use the
CEA network for intrastate, intraLATA
toll calls in Iowa. And the Iowa
Supreme Court relied on the same
justification when it upheld the Iowa
Utilities Board’s authorization for the
CEA network. We also reject as a reason
for reconsideration Aureon’s assertion
that our modification to the mandatory
use policy is contrary to the
Commission’s original intent in
establishing the mandatory use policy—
to ensure that tariffed CEA rates would
remain affordable for AT&T’s smaller
IXC competitors. To the contrary, IXCs
carrying terminating access-stimulation
traffic should be paying less now
because they will not be paying tandem
switching and transport charges for
access-stimulation traffic. Moreover,
Aureon also fails to acknowledge that
CEAs were created to facilitate rural
customers’ ability to originate calls
through the long-distance carrier of their
choice. Our changes to Aureon’s section
214 authorization should not have any
effect on its ability to provide
centralized equal access service.
49. Aureon goes on to claim that we
erred in modifying its section 214
authorization because the mandatory
use provisions were in the public
interest. While we acknowledge that the
then-Common Carrier Bureau
determined that those provisions were
in the public interest in 1988, we also
recognize that, at the time, the Common
Carrier Bureau and others envisioned
that the majority of the traffic traversing
the CEA network would be intrastate.
As we explained in the Access Arbitrage
Order, however, ‘‘[a]ccess stimulation
has upended the original projected
interstate-to-intrastate traffic ratios
carried by the CEA networks.’’ SDN and
Aureon ended up acting as a price
umbrella that allowed accessstimulating LECs and the intermediate
access providers with which they
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partnered to overcharge for transport, as
long as they offered a rate that was
slightly under the CEA rate. And,
‘‘because the Commission’s rules
disrupt[ed] accurate price signals,
tandem switching and transport
providers for access stimulation [had]
no economic incentives to meaningfully
compete on price.’’ The result was that
‘‘ ‘AT&T and other carriers routinely
discover that carriers located in remote
areas with long transport distances and
high transport rates enter into
arrangements with high volume service
providers . . . for the sole purpose of
extracting inflated intercarrier
compensation rates due to the distance
and volume of traffic.’ ’’ Based on these
changed circumstances, we find that we
properly determined ‘‘that the public
interest will be served by changing any
mandatory use requirement for traffic
bound to access-stimulating LECs to be
voluntary usage’’ and ‘‘that access
stimulation presents a reasonable
circumstance for departing from the
mandatory use policy.’’ Thus, although
the mandatory use policy requiring IXCs
to use SDN and Aureon for traffic
terminating at participating telephone
companies may have been in the public
interest in 1988, it is not in the public
interest today with respect to traffic
terminating at access-stimulating LECs.
50. Aureon also claims that the
Commission should have used a ‘‘less
restrictive and less burdensome’’
measure when it modified the section
214 authorizations. We disagree. Rather
than eliminating the mandatory use
provisions altogether, an option that we
considered, we modified them only
with respect to traffic terminating at
access-stimulating LECs and only
because doing so was necessary to
effectuate our other access stimulation
rules. As such, we adopted an approach
that is narrowly tailored and well suited
to the problem of the price umbrellas
created by mandatory use that accessstimulating intermediate providers and
their partners were using to their
benefit. In the Access Arbitrage Order.
we found that the ‘‘vast majority’’ of
access-stimulation traffic was routed to
LECs that subtend Aureon and SDN.
Given that finding, we decided to
modify Aureon’s and SDN’s section 214
authorizations to enable IXCs to use
whatever intermediate access provider
an access-stimulating LEC that
otherwise subtends Aureon or SDN
chooses. We reasoned that doing so will
allow IXCs to choose more efficient and
cost-effective routing options—such as
direct connections—to reach accessstimulating LECs. We do not see—and
Aureon has not suggested—a ‘‘less
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restrictive’’ mechanism for achieving
our goal.
51. Finally, Aureon’s assertions
regarding the importance of the
mandatory use provision are belied by
information in the record indicating that
traffic often bypasses its network. Thus,
we find no merit in Aureon’s request
that we reconsider our decision to
modify its section 214 authorization.
IV. Procedural Matters
52. Paperwork Reduction Act
Analysis. This Order on
Reconsideration does not contain any
new or modified information collection
requirements subject to the Paperwork
Reduction Act of 1995, Public Law 104–
13. Thus, it does not contain any new
or modified information collection
burden for small business concerns with
fewer than 25 employees, pursuant to
the Small Business Paperwork Relief
Act of 2002, Public Law 107–198, see 44
U.S.C. 3506(c)(4).
53. Congressional Review Act. The
Commission will not send a copy of this
Order on Reconsideration to Congress
and the Government Accountability
Office pursuant to the Congressional
Review Act, see 5 U.S.C. 801(a)(1)(A),
because no rule was adopted or
amended.
54. Regulatory Flexibility Act
Analysis. In the Access Arbitrage Order,
the Commission provided a Final
Regulatory Flexibility Analysis pursuant
to the Regulatory Flexibility Act of
1980, as amended (RFA). We received
no petitions for reconsideration of that
Final Regulatory Flexibility Analysis. In
this present Order on Reconsideration,
the Commission promulgates no
additional final rules. Our present
action is, therefore, not an RFA matter.
V. Ordering Clauses
55. Accordingly, it is ordered that,
pursuant to sections 1, 2, 4(i), 4(j), 201,
214, 218–220, 251, 252, 403 and 405 of
the Communications Act of 1934, as
amended, 47 U.S.C. 151, 152, 154(i),
154(j), 201, 214, 218–220, 251, 252, 403,
405, and §§ 1.47(h), 1.429, 63.10 and
64.1195 of the Commission’s rules, 47
CFR 1.47(h), 1.429, 63.10 and 64.1195,
this Order on Reconsideration is
adopted.
56. It is further ordered that the
Petition for Reconsideration filed by
Iowa Network Services, Inc. d/b/a
Aureon Network Services, is dismissed
and, on alternate and independent
grounds, it is denied.
57. It is further ordered that, pursuant
to § 1.103 of the Commission’s rules, 47
CFR 1.103, this Order on
Reconsideration shall be effective upon
release.
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Federal Communications Commission.
Marlene Dortch,
Secretary, Office of the Secretary.
[FR Doc. 2020–13183 Filed 7–7–20; 8:45 am]
BILLING CODE 6712–01–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 600
[Docket No. 200626–0173]
RIN 0648–BJ15
Vessel Monitoring Systems;
Requirements for Type-Approval of
Cellular Transceiver Units
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
The U.S. Vessel Monitoring
System (VMS) program type-approves
enhanced mobile transceiver units
(EMTUs) for use in U.S. fisheries.
Currently, the only approved method for
transferring VMS data from a vessel to
NMFS is by satellite-linked
communication services. This final rule
amends the existing VMS type-approval
regulations to add cellular-based
EMTUs (EMTU-Cs) type-approval
application and testing procedures;
compliance and revocation processes;
and technical, service, and performance
standards. This rule is necessary to
allow for the use of EMTU-Cs and
cellular communication service, in
addition to satellite-only models, in
federally managed fisheries.
DATES: The final rule will be effective
August 7, 2020.
ADDRESSES: Copies of the Final
Regulatory Impact Review, Final
Regulatory Flexibility Analysis and the
information collection request
submitted to the Office of Management
and Budget (OMB) may be obtained at
https://www.fisheries.noaa.gov/topic/
enforcement#vessel-monitoring. Written
comments regarding the burden-hour
estimates or other aspects of the
collection-of-information requirements
contained in this final rule may be
submitted to the NMFS Office of Law
Enforcement, attention Kelly Spalding,
1315 East-West Highway, Silver Spring,
MD 20910, or to OMB by email OIRA_
Submission@omb.eop.gov.
FOR FURTHER INFORMATION CONTACT:
Kelly Spalding, Vessel Monitoring
System Program Manager, NMFS: 301–
427–8269 or kelly.spalding@noaa.gov.
SUMMARY:
E:\FR\FM\08JYR1.SGM
08JYR1
Agencies
[Federal Register Volume 85, Number 131 (Wednesday, July 8, 2020)]
[Rules and Regulations]
[Pages 40908-40915]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13183]
=======================================================================
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 51, 54, 61, and 69
[WC Docket No. 18-155; FCC 20-79; FRS 16861]
Updating the Intercarrier Compensation Regime To Eliminate Access
Arbitrage
AGENCY: Federal Communications Commission.
ACTION: Order on reconsideration.
-----------------------------------------------------------------------
SUMMARY: In this document, the Federal Communications Commission
responds to a petition for reconsideration of the Access Arbitrage
Order filed by Iowa Network Services d/b/a Aureon Network Services
(Aureon) in Iowa. Upon review of the record, we dismiss Aureon's
Petition as procedurally defective, and independently, and in the
alternative, deny it on substantive grounds.
DATES: The denial of the petition for reconsideration was effective
June 11, 2020.
ADDRESSES: The complete text of this document is available for
inspection and copying during normal business hours in the FCC
Reference Information Center, Portals II, 445 12th Street SW, Room CY-
A257, Washington, DC 20554, or at the following internet address: At
https://docs.fcc.gov/public/attachments/FCC-20-79A1.pdf.
FOR FURTHER INFORMATION CONTACT: For further information, please
contact Victoria Goldberg, Pricing Policy Division, Wireline
Competition Bureau, at [email protected].
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order
on Reconsideration (Order) in WC Docket No. 18-155, adopted June 11,
2020 and released June 11, 2020. The full text of this document is
available on the Commission's website at https://docs.fcc.gov/public/attachments/FCC-20-79A1.pdf.
I. Introduction
1. In the 2019 Access Arbitrage Order (84 FR 57629, Oct. 28, 2019),
we tackled, once again, the troublesome use of ``free'' conference
calling, chat lines, and certain other services operated out of rural
areas to take advantage of inefficiently high access charges allowed
under the existing intercarrier compensation regime. As we explained,
access stimulation schemes adapted to shrinking end office termination
charges by taking advantage of access charges that had not transitioned
or were not transitioning to bill-and-keep. As such, these schemes were
structured to ensure that interexchange carriers (IXCs) would pay high
tandem switching and tandem switched transport charges to access-
stimulating local exchange carriers (LECs) and to the intermediate
access providers chosen by those access-stimulating LECs. We also found
that the vast majority of access-stimulation traffic was bound for LECs
that subtended two centralized equal access (CEA) providers, Iowa
Network Services d/b/a Aureon Network Services (Aureon) in Iowa and
South Dakota Network, LLC (SDN) in South Dakota.
2. To eliminate the financial incentives to engage in access
arbitrage, we adopted rules making access-stimulating LECs--rather than
IXCs--financially responsible for the tandem switching and transport
service access charges associated with the delivery of traffic from an
IXC to the access-stimulating LEC end office or its functional
equivalent. To facilitate the implementation of the rules in Iowa and
South Dakota, we also modified the section 214 authorizations for
Aureon and SDN to permit traffic terminating at access-stimulating LECs
that subtend those CEA providers' tandems to bypass the CEA tandems.
3. Now Aureon seeks reconsideration of the Access Arbitrage Order.
In its Petition, Aureon reiterates several of the arguments it made on
the record in the Access Arbitrage proceeding. In particular, Aureon
objects to our decision to adopt rules making access-stimulating LECs
responsible for paying for tandem switching and transport services, and
argues that we should instead have adopted one of its proposals--either
to ban access stimulation or to require consumers placing calls to
access-stimulating LECs to pay their IXCs an additional charge for each
such call. Aureon also objects to our decision to modify its section
214 authorization, and it argues that we should have addressed its cost
and rate complaints that are at issue in other Commission proceedings.
Upon review of the record, we dismiss Aureon's Petition as procedurally
defective, and independently, and in the alternative, deny it on
substantive grounds.
II. Background
4. The Commission has been combating access stimulation for more
than a decade. Traditionally, access-stimulating LECs relied on the
existence of high end office terminating switched access rates in rural
areas that allowed them to increase their revenue by inflating their
terminating call volumes through arrangements with entities that offer
high-volume calling services. Because LECs entering traffic-inflating
revenue-sharing agreements were not required to reduce their access
rates to reflect their increased volume of minutes, access stimulation
increased access minutes-of-use and access payments (at constant, per-
minute-of-use rates that exceed the actual average per-minute cost of
providing access). As a result, IXCs and their customers had to pay
those inflated intercarrier compensation charges.
5. In the 2011 USF/ICC Transformation Order (76 FR 73830, Nov. 29,
2011), the Commission found that access-stimulating LECs were
``realiz[ing] significant revenue increases and thus inflated profits
that almost uniformly [made] their interstate switched access rates
unjust and unreasonable.'' The record showed that the ``total cost of
access stimulation to IXCs [had] been more than $2.3 billion over the
[preceding] five years'' and that ``Verizon estimate[d] the overall
costs to IXCs to be between $330 and $440 million per year.'' The
Commission explained that all long distance customers ``bear these
costs, even though many of them do not use the access stimulator's
services, and, in essence, ultimately support businesses designed to
take advantage of today's above-cost intercarrier compensation rates.''
The Commission also found that ``[a]ccess stimulation imposes undue
costs on consumers, inefficiently diverting capital away from more
productive uses such as broadband deployment,'' and that it ``harms
competition by giving companies that offer a `free' calling service a
competitive advantage over companies that charge their customers for
the service.''
6. The Commission sought to eliminate the detrimental effect of
[[Page 40909]]
access stimulation on all American consumers by requiring LECs to
refile their interstate switched access tariffs at lower rates if: (1)
The LEC has a revenue-sharing agreement; and (2) the LEC either has (a)
a 3:1 ratio of terminating-to-originating traffic in any month or (b)
has more than a 100% increase in traffic volume in any month measured
against the same month during the previous year. These rules were
``narrowly tailored to address harmful practices while avoiding burdens
on entities not engaging in access stimulation.'' The LECs that were
thereby identified as being engaged in access stimulation were, for the
most part, required to change their tariffs for end office access
charges. A rate-of-return LEC was required to file its own cost-based
tariff under section 61.38 of the Commission's rules and could not file
based on historical costs under section 61.39 of the Commission's rules
or participate in the NECA traffic-sensitive tariff. A competitive LEC
was required to benchmark its tariffed end office access rates to the
rates of the price cap LEC with the lowest interstate switched access
rates in the state.
7. In the USF/ICC Transformation Order, the Commission transitioned
end office terminating access charges to bill-and-keep. The Commission
found that the transition to bill-and-keep would help reduce access
stimulation by reducing ``competitive distortions inherent in the
intercarrier compensation system and eliminating carriers' ability to
shift network costs to competitors and their customers.'' At the same
time, the Commission transitioned tandem switching and transport
charges to bill-and-keep for price cap carriers when the terminating
price cap carrier owns the tandem in the serving area, 47 CFR 51.907.
For rate-of-return carriers, the Commission capped terminating
interstate and intrastate transport charges at interstate levels.
8. In September 2017, in light of developments that had occurred in
the relevant markets since the USF/ICC Transformation Order, the
Wireline Competition Bureau (Bureau) sought to refresh the record on
several issues, including the transition of the remaining tandem
switching and transport charges to bill-and-keep. The comments that the
Bureau received suggested that, in response to the reforms adopted in
the USF/ICC Transformation Order, access stimulation schemes had
adapted to shrinking end office termination charges and sought to take
advantage of access charges that have not yet transitioned or are not
transitioning to bill-and-keep. It appeared that access stimulation
schemes had restructured to take advantage of the tandem switching and
tandem switched transport charges that IXCs pay to access-stimulating
LECs. The access stimulation schemes often involved carriers that
billed ``excessive transport charges, including lengthy per-mile, per-
minute charges to remote areas on large volumes of stimulated''
traffic.
9. In 2018, the Commission adopted a Notice of Proposed Rulemaking
(Access Arbitrage Notice) (83 FR 30628, June 29, 2018) proposing to
eliminate the financial incentive to engage in access arbitrage by
giving access-stimulating LECs two alternatives for connecting to IXCs.
First, the access-stimulating LEC could choose to be financially
responsible for calls delivered to its network; in this situation, IXCs
would no longer pay for the delivery of calls to the access-stimulating
LEC's end office or the functional equivalent. Second, instead of
accepting this financial responsibility, the access-stimulating LEC
could choose to accept direct connections either from the IXC or an
intermediate access provider of the IXC's choice; this alternative
would permit IXCs to bypass intermediate access providers selected by
the access-stimulating LEC. The Commission also sought comment on
revising the access stimulation definition, on moving all traffic bound
for an access-stimulating LEC to bill-and-keep, and on additional
arbitrage schemes and ways to eradicate them.
10. The Commission also sought comment on whether it should modify
the section 214 authorizations of Aureon and SDN, which were granted
almost 30 years ago. When the then-Common Carrier Bureau adopted the
section 214 authorizations which formed the regulatory foundation for
the CEA providers, it included a mandatory use provision for Aureon,
and an apparent mandatory use provision for SDN. These mandatory use
provisions required IXCs delivering terminating traffic to a LEC
subtending one of these CEA tandems to deliver the traffic to the CEA
tandem rather than indirectly through another intermediate access
provider or directly to the subtending LEC. In the Access Arbitrage
Notice, the Commission proposed to eliminate the mandatory use
requirement as it pertains to traffic terminating at access-stimulating
LECs because, among other things, delivery of such high volumes of
traffic was not the reason that CEA providers were authorized.
11. The Commission received over 140 formal comments and ex parte
communications, and over 2,500 ``express'' comments in response to the
Access Arbitrage Notice. In the Access Arbitrage Order, we found that
the rules adopted in the USF/ICC Transformation Order resulted in a
dramatic reduction in costs to IXCs--from approximately $330 million to
$440 million annually reported in 2010 to between $60 million and $80
million annually reported in 2019--and ``effectively discouraged rate-
of-return LEC access stimulation activity.'' We also found that since
terminating end office access rates had transitioned to bill-and-keep
they were no longer driving access stimulation. Instead, we found that
access arbitrage schemes were taking advantage of terminating tandem
switching and transport service access charges which, unlike end office
switching charges, had not yet transitioned or are not transitioning to
bill-and-keep. We also found that access stimulators typically operate
in those areas of the country where tandem switching and transport
charges remain high and are causing intermediate access providers,
including CEA providers, to be included in the call path. We further
explained that the tariffed tandem and transport access charges of CEA
providers with mandatory use requirements served as a price umbrella
for similar services offered by intermediate access providers pursuant
to commercial agreement, thus inviting access arbitrage. The
intermediate access provider would attract traffic to its facilities by
offering a small discount from the applicable tariffed CEA rate.
12. In the Access Arbitrage Order, we adopted three key rule
modifications of relevance here. First, to reduce the use of the access
charge system to subsidize high-volume calling services, we adopted
rules making access-stimulating LECs--rather than IXCs--financially
responsible for the tandem switching and tandem switched transport
access charges for the delivery of terminating traffic from IXCs to the
access-stimulating LECs' end offices or their functional equivalents.
Second, we modified the definition of access stimulation to include two
new alternative triggers without a revenue-sharing component. Third, to
facilitate our new rules, we modified the Aureon and SDN section 214
authorizations to eliminate the mandatory use requirements insofar as
they apply to traffic being delivered to access-stimulating LECs. We
therefore enabled ``IXCs to use whatever intermediate access provider
an access-stimulating LEC that otherwise subtends Aureon or SDN
chooses.'' We reasoned that our action would ``allow IXCs to directly
connect to access-stimulating LECs
[[Page 40910]]
where such connections are mutually negotiated and where doing so would
be more efficient and cost-effective.''
13. In November 2019, Aureon filed its Petition seeking
reconsideration of the Access Arbitrage Order. Aureon requests that we:
(a) Reconsider our rules requiring access-stimulating LECs to pay
tandem switching and transport charges and instead either ban access
stimulation or, in the alternative, require callers to high-volume
calling services to pay for additional fees to cover the costs of the
IXCs' access charges; (b) retain the mandatory use provisions of the
section 214 authorizations for Aureon and SDN; and (c) reconsider what
Aureon characterizes as additional financial burdens on CEA providers
created by our reforms.
14. We released a Public Notice announcing the filing of the
Petition and established deadlines for Oppositions and Replies to the
Petition. We received Oppositions from AT&T, Verizon and Sprint, and a
Reply from Aureon.
15. Any interested party may file a petition for reconsideration of
a final action in a rulemaking proceeding, 47 CFR 1.429(a).
Reconsideration ``may be appropriate when the petitioner demonstrates
that the original order contains a material error or omission, or
raises additional facts that were not known or did not exist until
after the petitioner's last opportunity to present such matters,'' 47
CFR 1.429(b). Petitions for reconsideration that do not warrant
consideration by the Commission include those that: ``[f]ail to
identify any material error, omission, or reason warranting
reconsideration; [r]ely on facts or arguments which have not been
previously presented to the Commission; [r]ely on arguments that have
been fully considered and rejected by the Commission within the same
proceeding;'' or ``[r]elate to matters outside the scope of the order
for which reconsideration is sought,'' 47 CFR 1.429(l)(1)-(3), (5). The
Commission may consider facts or arguments not previously presented if:
(1) They ``relate to events which have occurred or circumstances which
have changed since the last opportunity to present such matters to the
Commission'', 47 CFR 1.429(b)(1); (2) they were ``unknown to petitioner
until after [their] last opportunity to present them to the Commission,
and . . . could not through the exercise of ordinary diligence have
learned of the facts or arguments in question prior to such
opportunity,'' 47 CFR 1.429(b)(2); or (3) ``[t]he Commission determines
that consideration of the facts or arguments relied on is required in
the public interest,'' 47 CFR 1.429(b)(3).
III. Discussion
16. We consider and dismiss Aureon's Petition as procedurally
deficient. Separately, we deny the Petition on the merits. In the
discussion below, we address the Petition's procedural defects and then
turn to the shortcomings of Aureon's substantive arguments.
A. Aureon's Petition Is Procedurally Defective
17. Aureon fails to meet the standard to justify reconsideration.
It does not identify any material error or omission in the Access
Arbitrage Order; raise facts that were not known or did not exist
before Aureon's last opportunity to present such matters in the
underlying rulemaking; or demonstrate that reconsideration would be in
the public interest. Instead, Aureon's Petition suffers from numerous
procedural flaws--repeating arguments that Aureon previously raised and
to which we responded, raising ``new'' arguments that it could have
made in the underlying proceeding, and presenting arguments that are
beyond the scope of this proceeding--that warrant dismissal, 47 CFR
1.429(l).
18. The Commission Need Not Address Petitions that Repeat Previous
Arguments. Our rules and precedent are clear that we need not consider
petitions for reconsideration, such as Aureon's, that ``merely repeat
arguments we previously . . . rejected'' in the underlying order.
Nonetheless, Aureon focuses its Petition on arguments it already made.
Most notably, notwithstanding Aureon's claim to the contrary, in the
Access Arbitrage Order, we fully considered and rejected its
recommendations to ban access stimulation or to allow IXCs to charge
users of access-stimulating services for the access costs associated
with those services.
19. We recognize that we are required to `` `consider responsible
alternatives to [our] chosen policy and to give a reasoned explanation
for [our] rejection of such alternatives.' '' At the same time, while
``an agency ordinarily must consider less restrictive alternatives and
should explain its reasons for failing to adopt such alternatives,'' we
are required only to provide an explanation of our decision to reject
any particular proposal.
20. With respect to Aureon's proposal to ban access stimulation, in
the Access Arbitrage Order, we recognized Aureon's proposal and found,
as the Commission concluded in the USF/ICC Transformation Order, that a
ban would be an overbroad solution. As we explained, we therefore opted
to ``prescribe narrowly focused conditions for providers engaged in
access stimulation'' that strike an ``appropriate balance between
addressing access stimulation and the use of intermediate access
providers while not affecting those LECs that are not engaged in access
stimulation.'' Thus, we fully considered and rejected Aureon's
proposal.
21. With respect to Aureon's proposal to require IXCs to charge
access-stimulation service customers the cost of related access
charges, we explicitly addressed Aureon's previous, more specific
proposal that we allow IXCs to charge a penny a minute to their
customers making calls to access-stimulating LECs. We gave two reasons
for rejecting Aureon's proposal on the merits, explaining that: (1)
There was no evidence to suggest that access-stimulation calls cost a
penny per minute, ``so the proposal would simply trade one form of
inefficiency for another;'' and (2) ``such an overbroad proposal . . .
would confuse consumers and unnecessarily spill into, and potentially
affect, the operation of the more-competitive wireless marketplace.''
Aureon now claims that it never intended to propose charging customers
``a specific price for the call, such as a penny'' and insists that its
intent was simply to suggest charging customers ``something other than
zero for a call that has been falsely represented in the past as being
`free.''' Putting aside Aureon's attempt to recast its proposal, Aureon
fails to persuade us that our consideration of the concept of IXCs
charging end users for placing calls to access-stimulating LECs was
insufficient.
22. We also fully considered and rejected another request that
Aureon now repeats: That we not modify its section 214 certification.
As we explained when we rejected this request, Aureon provided no
supporting detail for its claim that modifying its section 214
authorization would negatively affect its ability to provide services
in rural areas and to maintain its network. We further explained that
``[o]ur decision to permit traffic being delivered to an access-
stimulating LEC to be routed around a CEA tandem does not affect
traffic being delivered to non-access-stimulating LECs that remain on
the CEA network, and will not impact Aureon's ability to serve rural
areas, contrary to Aureon's concern.'' As these arguments have been
``fully considered and rejected by the Commission,'' they are
procedurally improper here.
[[Page 40911]]
23. Aureon also repeats various other arguments that we addressed
in the Access Arbitrage Order. For example, Aureon again claims that
our access arbitrage rules shift costs to ``a few thousand rural
customers paying for access stimulation services that they never use,
as the LECs recover their costs from their rural end users.'' The claim
is incorrect. As we explained in the Access Arbitrage Order, our new
rules ``shift the recovery of costs associated with the delivery of
traffic to an access-stimulating LEC's end office from IXCs to the
LEC.'' And, under our new rules, carriers may respond to the shifting
financial responsibilities ``in a number of ways--including in
combination--such as by changing end-user rates,'' selecting less
costly intermediate access providers or traffic routes, or seeking out
other revenue sources, such as ``through an advertising-supported
approach to offering free services or services provided at less than
cost.''
24. Aureon also rehashes its previous argument that under the new
rules, large IXCs ``could engage in arbitrage with respect to wholesale
IXC transport and transit service.'' In the Access Arbitrage Order, we
found ``no merit'' to these same arguments because Aureon failed to
explain how IXCs would accomplish such arbitrage. As we explained, our
new rules did not shift arbitrage opportunities to IXCs or to any other
providers.
25. Aureon also repeats the argument that our new rules could lead
to call completion problems. In the Access Arbitrage Order, we
concluded that an intermediate access provider may consider its call
completion duties satisfied ``once it has delivered the call to the
tandem designated by the access-stimulating LEC.'' Finally, Aureon
again raises concerns about the ``demise'' of its network without
access-stimulating LECs (one that it does not attempt to square with
its request to outlaw access stimulation). Aureon raised these concerns
during the rulemaking proceeding and we dismissed them because Aureon
provided no data to support its claims.
26. Apparently recognizing this weakness in its Petition, Aureon
contends that we should exercise our discretion and consider its
Petition even though it repeats arguments we have already rejected.
Yet, to support this contention, Aureon relies on three Commission
orders denying other petitions for reconsideration. We find none of the
proffered orders persuasive. The first order is simply inapposite--it
does not even discuss review of repetitious petitions for
reconsideration. The second order denies the petitions at issue in part
because they were repetitive. In the third order, the Commission
considers a repetitious petition for reconsideration, as Aureon would
have us do here, but ultimately denies the petition because the
petitioner failed to demonstrate any material error or omission or to
raise any new facts, and found that the new arguments were
unpersuasive. Thus, the orders Aureon cites do little to advance its
cause. Certainly nothing in those orders requires us to review, much
less grant, Aureon's Petition to the extent it merely repeats arguments
it made in the underlying proceeding.
27. The New Arguments That Aureon Now Makes Should Have Been Known
to It. Aureon complains for the first time about possible costs it may
incur related to compliance with the switch in financial responsibility
for tandem switching and transport services provided to access
arbitrage customers, claiming that it would be an ``administrative
nightmare'' if LECs change their status from access-stimulating LECs to
non-access-stimulating LECs--which it contends incorrectly could take
place monthly, 47 CFR 61.3(bbb)(2)-(3). Aureon also predicts an
increase in billing disputes related to the Order. Aureon failed to
raise these challenges in its various filings in the underlying
proceeding, and it has provided no explanation why it could not have
raised these issues before the Access Arbitrage Order was adopted.
28. Also for the first time, Aureon provides data purporting to
illustrate that ``Aureon would be prevented from charging a cost-based
rate above the competitive LEC benchmark rate if access stimulation
traffic were removed from the CEA network.'' Certainly, Aureon should
have been able to provide such illustrative data during the rulemaking
proceeding. The application of the competitive LEC benchmark rule is
not new, and Aureon was on notice of our proposed course of action with
respect to access stimulation. Aureon has provided no explanation as to
why it could not have provided this financial data during the
rulemaking proceeding (nor, again, how its argument here squares with
its request to outlaw access arbitrage), 47 CFR 1.429(l); 47 U.S.C.
405.
29. Aureon Seeks Reconsideration Based on Issues Beyond the Scope
of This Proceeding. We also find that Aureon's Petition is procedurally
deficient and subject to dismissal insofar as it requests that on
reconsideration we address the rates that Aureon can charge as a CEA
provider. Aureon complains about ``rate differentials,'' the
Commission's ``accounting directive'' for CEA service, and the rate
caps that have applied to Aureon since before the Access Arbitrage
Order. Aureon also asserts that the reforms adopted in the Access
Arbitrage Order will prevent it from recovering its costs--because of
the preexisting cap on its rates--and complains that those same reforms
``do[ ] not allow Aureon to earn the authorized rate of return or to
charge just and reasonable rates.'' We dismiss these arguments because
they are outside the scope of the proceeding. As we explained in the
Access Arbitrage Order, the rules we adopted in that Order ``do not
affect the rates charged for tandem switching and transport.''
Likewise, nothing in the Access Arbitrage Order affects the method that
Aureon must use to calculate its rates. Indeed, the issue of Aureon's
rates and the proper method of calculating those rates are the subject
of two entirely separate proceedings.
B. Aureon's Petition Fails on the Merits
30. Although Aureon's Petition warrants dismissal on procedural
grounds alone, we also find that the Petition fails on the merits. This
failure provides an alternative and independent basis for rejecting the
Petition. Contrary to Aureon's claims, the rules we adopted in the
Access Arbitrage Order accomplish our goal of removing the financial
incentives to engage in access arbitrage and reducing the use of
intercarrier compensation to provide implicit subsidies to services
offered by access-stimulating LECs. It was also reasonable for us to
find that the rules we adopted are more targeted and more effective
than a blanket ban on access stimulation or a rule allowing IXCs to
charge consumers more for calls to access-stimulation services.
Finally, our decision to modify Aureon's section 214 authorization was
supported by the record and furthers our goal of shifting financial
responsibility for access stimulation to the access-stimulating LEC.
1. The Reforms Adopted in the Access Arbitrage Order Are Consistent
With the Commission's Policy Goals
31. Our Action Removes Financial Incentives to Engage in Access
Arbitrage. In both the Access Arbitrage Notice and the Access Arbitrage
Order, the Commission was clear that the fundamental goal in this
proceeding was to remove financial incentives to engage in access
arbitrage. In the USF/ICC Transformation Order, the Commission
successfully sought to reduce the cost of
[[Page 40912]]
access arbitrage by defining access stimulation and by capping the
terminating end office rates charged by access-stimulating competitive
LECs. The Commission also recognized that the transition of all
terminating end office charges to bill-and-keep would further reduce
the cost of access arbitrage to IXCs and their customers. In the Access
Arbitrage Order, we found that the Commission's existing rules worked
well and reduced the annual cost of access arbitrage to IXCs, and by
extension their customers, from between $330 million to $440 million
annually to between $60 million to $80 million annually. We explained
that, as terminating end office rates fell, those charges no longer
drove access-stimulation schemes. Despite this history, Aureon seeks to
attack our decisions in the Access Arbitrage Order, first by arguing
that ``years of experience have shown that [reforming] the intercarrier
compensation approach simply does not work'' to curb access arbitrage.
This argument ignores the evidence presented in the Access Arbitrage
Order demonstrating that the rules adopted in the USF/ICC
Transformation Order substantially reduced access arbitrage.
32. Aureon also ignores the very real benefit of the rules we
adopted in the Access Arbitrage Order. By making access-stimulating
LECs financially responsible for the rates charged to terminate traffic
to their end offices or functional equivalents, we now prevent access-
stimulating LECs from passing the costs of their services--or the
services of their high-volume calling provider partners--on to IXCs
and, by extension, the public at large. This may, in turn, cause
``users to cease using those services, and cause access-stimulating
LECs or their [high-volume calling provider partners] to terminate the
calling services altogether.'' This outcome is more than just
hypothetical. While most of the rules have only been in effect since
November 2019, we have already received letters from several entities
stating that they are exiting the access stimulation business. Aureon
neither acknowledges these developments nor provides any new evidence
demonstrating that IXCs are, or even could, engage in the type of
hypothetical arbitrage it theorizes about. Aureon argues that our new
rules are ineffective at reducing access stimulation, citing the
behavior of two companies that Aureon believes are taking steps to
evade our new rules. We stand ready to address and prevent any efforts
to circumvent our new rules. Indeed, the Wireline Competition Bureau
has already initiated one such investigation. However, efforts to
circumvent our rules do not undermine our reasonable predictive
judgment that the rules adopted in the Access Arbitrage Order will help
eliminate ``the financial incentives to engage in access arbitrage,'' a
prediction confirmed by the number of companies that have notified us
that they have left the access stimulation business. In sum, Aureon's
Petition does not support its claim that our new rules work at cross-
purposes with our goal.
33. Our Actions Address the Use of Intercarrier Compensation to
Provide Implicit Subsidies to Services Offered by Access-Stimulating
LECs. As we explained in the Access Arbitrage Order and Aureon has now
acknowledged, prior to the Access Arbitrage Order, ``it was the IXCs'
customers that subsidized the access costs incurred for a small subset
of customers to use an access stimulating service.'' Under our new
rules, a significant benefit of requiring access-stimulating LECs to
pay for tandem switching and transport is that doing so ends the use of
intercarrier compensation to implicitly subsidize access stimulation
services. Yet, Aureon claims that our access arbitrage rules shift
costs to ``a few thousand rural customers paying for access stimulation
services that they never use, as the LECs recover their costs from
their rural end users.'' This argument makes a number of unsupported
assumptions. First, it assumes that access-stimulation schemes will
continue to operate out of rural areas, despite the loss of the
financial incentives in the form of intercarrier compensation revenue
that led them there in the first place. Second, it assumes that access-
stimulating LECs have customers not engaged in access-stimulation
schemes and that those customers would remain customers should they
face higher prices. Finally, it assumes that access-stimulating LECs
are charging or will charge their non-access-stimulation customers more
to cover their new costs and fails to consider the possibility that
access-stimulating LECs will instead pass tandem switching and
transport charges through to the high-volume calling service providers
that cause the LECs to incur those costs. The latter possibility
properly aligns financial incentives by shifting costs to the cost
causers, which is what we set out to accomplish. And, despite
significant evidence that access-stimulating LECs have already exited
the access-stimulation business, we have no evidence that our rules
have led to an increase in rural rates and we have no evidence that
future departures from the access-stimulation business will cause such
increases.
34. There Is No Reason to Think that the Access Arbitrage Order
Will Have a Negative Impact on the Commission's Goal of Fostering
Competition in Rural Areas. Aureon further argues that amending its
section 214 authorization to exempt traffic delivered to access-
stimulating LECs from the mandatory use provision of that authorization
is inconsistent with a goal of that section 214 authorization:
Encouraging long distance competition in rural areas. Aureon does not
explain how modification of its section 214 authorization to eliminate
the mandatory use requirement for traffic delivered to access-
stimulating LECs will decrease IXC competition. Rather, Aureon suggests
that loss of access-stimulation traffic will lead to the ``demise'' of
its network, which it argues will have a deleterious impact on
competition in rural areas. Yet, in its Petition, Aureon does not
explain why it thinks the loss of access-stimulation traffic will lead
to its demise, nor does it attempt to reconcile the inconsistency
between its advocacy for an order on reconsideration that prohibits
access stimulation and its apparent claim that loss of access-
stimulation traffic will cause the Aureon network to collapse and
eliminate long distance competition in rural Iowa. Furthermore, there
is no evidence that access-stimulation traffic existed when Aureon
received its section 214 authorization. Indeed, the section 214
authorization was granted based on the Commission's understanding that
the CEA network would be supported primarily by intrastate traffic, not
interstate traffic. Aureon also fails to acknowledge that another CEA
provider, Minnesota Independent Equal Access Corporation, does not have
a mandatory use requirement in its authorization and that SDN has not
challenged the modification of its section 214 certification in the
Access Arbitrage Order. Both facts suggest that the mandatory use
requirement is not necessary for the successful operation of a CEA
network.
2. The Commission Justifiably Rejected Aureon's Proposals
35. We continue to find no merit to Aureon's position that either
its proposed ban on access stimulation or its proposal to allow IXCs to
charge end users for some of the access costs required to complete a
call to a high-volume calling service would be better than the more
nuanced approach we took in the Access Arbitrage Order.
[[Page 40913]]
36. In its Petition, Aureon argues that by failing to ban access
stimulation, the new rules will require it to ``maintain large and
potentially unused capacity to accommodate potential `whipsawing' of
traffic between networks.'' Aureon fails to explain, however, how these
issues stem from our access arbitrage rules and in its Petition
provides no data--such as forecasted capacity requirements or the cost
to Aureon of engineering its network to accommodate the alleged
capacity requirements--to support its claims. We fail to see how
Aureon's allegations about its capacity issues are attributable to the
new access arbitrage rules. If anything, the issue of capacity on
Aureon's network likely predates the Access Arbitrage Order.
37. We are also unpersuaded by Aureon's argument that banning
access stimulation would be preferable to our current rules because
under the new rules, rural end users will pay for access stimulation
services, even if those consumers don't use the services. We disagree
with Aureon's conclusion. Aureon does not attempt to square these
unsupported assertions with the fundamental premise of the rules
adopted in the Access Arbitrage Order: To make the access-stimulating
LEC--not rural end users--financially responsible for the rates charged
for stimulated traffic terminated to the LEC's end office or functional
equivalent. We agree with AT&T that, contrary to Aureon's assertions,
``the bulk of the access termination costs will be borne by access
stimulation LECs, the [free calling partners] or their customers--not
by rural customers who do not use the services.''
38. Moreover, we agree with AT&T and Sprint that Aureon's proposed
``ban'' would be unlikely to be effective. Aureon proposed to define
``High Call Volume Service'' as a high call volume operation marketed
as free to the end user and to ban services that met that definition.
Aureon also proposed a blanket prohibition on carrying traffic
associated with a high-volume calling operation ``with a rebuttable
trigger of 100,000 minutes per month to a single telephone number
whereby calls to that number would be prohibited.'' Aureon does not
explain how we would effectively monitor whether a high-volume calling
service is marketed as free to end users, however. Nor does Aureon
explain how we would enforce a prohibition on calls to a single number
that exceed 100,000 minutes in a given month. If the Commission could
not effectively identify whether a carrier is providing service to a
``high call volume operation,'' it would not be able to enforce the
proposed prohibition against carrying traffic for such providers. In
addition, carriers could circumvent Aureon's proposed minutes-of-use
trigger by operating enough telephone numbers for a particular access
stimulation scheme to keep the call volumes for a single telephone
number below the 100,000-minute threshold, and if they did so, it
appears that Aureon would have the same issue with managing capacity
requirements and call completion. Aureon did not grapple with these
issues in its comments during the rulemaking proceeding and makes no
effort to do so in its Petition or its Reply.
39. Relatedly, Aureon fails to provide any explanation as to how or
why a ban would be less restrictive than the narrowly focused rules we
adopted. Confusingly, Aureon asserts that ``[a]ll evidence points to
Aureon's proposed [ban] as satisfying both the FCC's existing policy .
. . and being less restrictive and burdensome because no sea-change
would be required with regard to how . . . the telecommunications
industry operated'' prior to the adoption of our new access arbitrage
rules. But, surely a complete ban on access stimulation (if it were
successful) would result in less traffic being delivered from IXCs to
CEA providers, not ``higher traffic volumes'' as Aureon suggests.
Aureon likewise provides no information about the alleged ``sea-
change'' wrought by our new rules beyond saying that it has always been
the norm for IXCs to pay access charges. Simply because ``it has always
been done that way'' does not mean that the Commission cannot change
course. And a change in course was warranted here to reduce the LECs'
incentives to engage in access stimulation.
40. Aureon also fails to substantively support its claim that our
new rules create an ``administrative nightmare.'' Aureon complains that
it will incur billing costs because LECs could become access
stimulators one month and then cease to be access stimulators the next,
resulting in the potential for billing disputes. Aureon provides no
data to support its concerns about billing costs. Nor does it provide
any data about how many LECs would change their status monthly, or even
how many access-stimulating LECs currently subtend its network.
Moreover, Aureon fails to address the fact that our rules prevent
access-stimulating LECs not engaged in revenue sharing from changing
their status more than once every six months, 47 CFR 61.3(bbb)(2)-(3).
In addition, Aureon does not explain why the reforms adopted in the
Access Arbitrage Order would lead to increased billing disputes.
41. Aureon claims that the rules requiring access-stimulating LECs
to pay Aureon for all terminating CEA services are ``overly broad''
because the CEA traffic will be ``some mix of traditional traffic and
access stimulation traffic.'' Aureon's concerns are misplaced. We
clearly and intentionally made sure that our rules covered both
``traditional'' and access-stimulation traffic, shifting ``financial
responsibility for all tandem switching and transport services to
access-stimulating LECs.'' As a result, it should make no difference to
Aureon whether the traffic it delivers to an access-stimulating LEC
consists entirely of access-stimulation traffic, non-access stimulation
traffic, or a mix of both.
42. Finally, Aureon argues that the Commission has, ``in analogous
contexts, determined that it was not overly broad to prohibit certain
types of behaviors.'' This argument falls far short of justifying
Aureon's requested reconsideration. Simply because the Commission has
chosen to ban certain unrelated practices in unrelated proceedings does
not mean that we were bound to ban a particular practice in this
particular proceeding.
43. Aureon's proposal that we allow IXCs to pass through the costs
of access stimulation to customers calling access-stimulating LECs also
fails on the merits. Aureon argues that allowing pass-through charges
to the users of high-volume calling services sends the correct pricing
signals whereas, as Aureon implies, the rules adopted in the Access
Arbitrage Order do not. But Aureon still does not provide any data
about what the pass-through cost could or should be, it does not
explain why it provided no such data in the underlying proceeding, nor
does it explain how we could reach a decision about what would be an
appropriate charge without such data. Our approach, which places
financial responsibility on the access-stimulating LECs, is simpler to
administer and avoids the difficulty of attempting to calculate a pass-
through charge absent relevant data, which, as we recognized in the
Access Arbitrage Order, is lacking.
44. In any event, contrary to Aureon's assertion, consumers are
``provided with more-accurate pricing signals for high-volume calling
services'' under our new rules. In the Access Arbitrage Order, we moved
the cost of terminating access charges for stimulated traffic from IXCs
to access-stimulating LECs, thereby aligning the cost of using high-
volume calling services closer to the actual users of those services.
As AT&T aptly explains, access-stimulating LECs and
[[Page 40914]]
high-volume calling service providers now ``have a choice to either
absorb the terminating access cost themselves, or pass them along to
the users of free calling services.'' If access-stimulating LECs decide
to pass those costs through to the users of those calling services,
those services will no longer be free. But, in either case, end users
will receive more accurate indications of the price of the services
they use. Our approach is also more consistent with cost causation
principles because it aligns the ``costs associated with traffic
destined for `free' conference call services to the carrier directly
serving the free conference call company rather than to all the
carriers that deliver conference call traffic that originates all over
the world.'' We agree with Sprint that ``[a]ligning costs this way . .
. requir[es] the final carrier--the cost causer access stimulating LEC
(and ultimately its customers, the conference call company)--to bear
the costs of decisions they make as to where to place the switch that
is serving the conference call company.'' Thus, we agree with
commenters that Aureon has not shown that requiring IXCs to pass
through costs to end users would be more effective at eliminating
access arbitrage than our chosen approach. We also reaffirm our
conclusion that the rules we adopted in the Access Arbitrage Order
provide customers with more accurate pricing signals than they had
before our Order.
3. Aureon Fails To Show That Our Decision To Modify Its Section 214
Authorization Should Be Reconsidered
45. We also deny on the merits Aureon's request that we reconsider
the modifications to Aureon's and SDN's section 214 authorizations that
now explicitly permit IXCs terminating traffic at an access-stimulating
LEC that subtends either of their CEA tandems to use routes other than
those CEA tandems to reach the access-stimulating LEC. Aureon raises
several objections, but none have merit.
46. To begin with, the reforms adopted in the Order do not prohibit
any access-stimulating LEC from choosing Aureon or SDN as its
intermediate carrier and paying them to provide service. Second, Aureon
argues that we did not consider how changing the mandatory use policy
would affect competition for long distance services. Although it is not
clear, Aureon's argument seems to be based on a prediction that a
reduction of access-stimulation traffic on the Aureon and SDN networks
as a result of the Access Arbitrage Order will lead to Aureon's demise.
Relatedly, Aureon complains that it will be harmed because it relied on
the grant of its section 214 authorization in building and maintaining
its network. These arguments make little sense for a number of reasons.
First, the Order does not eliminate the mandatory use requirements as
they may apply to traffic terminating at non-access-stimulating LECs.
The mandatory use requirements continue to apply to IXCs delivering
traffic to dozens of non-access-stimulating LECs that subtend Aureon's
and SDN's tandems. Third, although we previously dismissed Aureon's
concerns about the financial impact on Aureon in the Arbitrage Order
because Aureon provided no data to support its claims, Aureon once
again failed to provide data supporting its concerns in the Petition.
47. Aureon raised concerns about the ``demise'' of its network in
the underlying rulemaking, and we dismissed those concerns because
Aureon provided no data to support its concerns. AT&T points out that
merely repeating those arguments without ``put[ting] forward any
supporting data'' does not provide a basis for reconsideration. While
Aureon did provide some data in its Reply, it uses the data to spin a
tale about the hypothetical removal of access-stimulation traffic. Such
speculation cannot justify Aureon's request for reconsideration. Aureon
provides three tables showing select information from its most recent
tariff filing. It manipulates these tables to show revenue shortfalls
if access-stimulation traffic were to leave its network. However, there
is evidence in the record that a significant amount of traffic already
bypasses Aureon's CEA tandem. In addition, Aureon bases its
calculations on data provided by AT&T in a different proceeding, using
AT&T's data to calculate the percentage of revenues Aureon may lose in
its hypothetical. But Aureon never confirms whether AT&T's data is
correct. So it is difficult to determine, on the basis of the data
submitted, the actual, verifiable effect of the Access Arbitrage Order
on Aureon's network. Furthermore, while Aureon appears to claim that
the Access Arbitrage Order may lead to its demise by taking access-
stimulation traffic off its network, Aureon does not even attempt to
square that claim with its argument that access stimulation should be
banned. If Aureon's proposed ban were successful, Aureon would also
stop carrying access stimulation traffic, which would have the same
financial impact that Aureon alleges the Access Arbitrage Order will
have. As Verizon points out, banning access stimulation ``would likely
cause the same, or even greater, reduction in traffic on CEA providers'
networks'' as the section 214 modifications.
48. Next, Aureon claims that the Commission ``authorized the
mandatory use policy to . . . bring advanced services to rural areas''
and therefore its mandatory use authority should not be replaced.
Aureon is not able to offer support for this claim because the Aureon
Section 214 Order says nothing about advanced services, which was not a
commonly used term when the then-Common Carrier Bureau adopted that
Order in the 1980s. Instead, the Common Carrier Bureau found that the
mandatory use policy was justified by the revenues that would be
generated by requiring Northwestern Bell to use the CEA network for
intrastate, intraLATA toll calls in Iowa. And the Iowa Supreme Court
relied on the same justification when it upheld the Iowa Utilities
Board's authorization for the CEA network. We also reject as a reason
for reconsideration Aureon's assertion that our modification to the
mandatory use policy is contrary to the Commission's original intent in
establishing the mandatory use policy--to ensure that tariffed CEA
rates would remain affordable for AT&T's smaller IXC competitors. To
the contrary, IXCs carrying terminating access-stimulation traffic
should be paying less now because they will not be paying tandem
switching and transport charges for access-stimulation traffic.
Moreover, Aureon also fails to acknowledge that CEAs were created to
facilitate rural customers' ability to originate calls through the
long-distance carrier of their choice. Our changes to Aureon's section
214 authorization should not have any effect on its ability to provide
centralized equal access service.
49. Aureon goes on to claim that we erred in modifying its section
214 authorization because the mandatory use provisions were in the
public interest. While we acknowledge that the then-Common Carrier
Bureau determined that those provisions were in the public interest in
1988, we also recognize that, at the time, the Common Carrier Bureau
and others envisioned that the majority of the traffic traversing the
CEA network would be intrastate. As we explained in the Access
Arbitrage Order, however, ``[a]ccess stimulation has upended the
original projected interstate-to-intrastate traffic ratios carried by
the CEA networks.'' SDN and Aureon ended up acting as a price umbrella
that allowed access-stimulating LECs and the intermediate access
providers with which they
[[Page 40915]]
partnered to overcharge for transport, as long as they offered a rate
that was slightly under the CEA rate. And, ``because the Commission's
rules disrupt[ed] accurate price signals, tandem switching and
transport providers for access stimulation [had] no economic incentives
to meaningfully compete on price.'' The result was that `` `AT&T and
other carriers routinely discover that carriers located in remote areas
with long transport distances and high transport rates enter into
arrangements with high volume service providers . . . for the sole
purpose of extracting inflated intercarrier compensation rates due to
the distance and volume of traffic.' '' Based on these changed
circumstances, we find that we properly determined ``that the public
interest will be served by changing any mandatory use requirement for
traffic bound to access-stimulating LECs to be voluntary usage'' and
``that access stimulation presents a reasonable circumstance for
departing from the mandatory use policy.'' Thus, although the mandatory
use policy requiring IXCs to use SDN and Aureon for traffic terminating
at participating telephone companies may have been in the public
interest in 1988, it is not in the public interest today with respect
to traffic terminating at access-stimulating LECs.
50. Aureon also claims that the Commission should have used a
``less restrictive and less burdensome'' measure when it modified the
section 214 authorizations. We disagree. Rather than eliminating the
mandatory use provisions altogether, an option that we considered, we
modified them only with respect to traffic terminating at access-
stimulating LECs and only because doing so was necessary to effectuate
our other access stimulation rules. As such, we adopted an approach
that is narrowly tailored and well suited to the problem of the price
umbrellas created by mandatory use that access-stimulating intermediate
providers and their partners were using to their benefit. In the Access
Arbitrage Order. we found that the ``vast majority'' of access-
stimulation traffic was routed to LECs that subtend Aureon and SDN.
Given that finding, we decided to modify Aureon's and SDN's section 214
authorizations to enable IXCs to use whatever intermediate access
provider an access-stimulating LEC that otherwise subtends Aureon or
SDN chooses. We reasoned that doing so will allow IXCs to choose more
efficient and cost-effective routing options--such as direct
connections--to reach access-stimulating LECs. We do not see--and
Aureon has not suggested--a ``less restrictive'' mechanism for
achieving our goal.
51. Finally, Aureon's assertions regarding the importance of the
mandatory use provision are belied by information in the record
indicating that traffic often bypasses its network. Thus, we find no
merit in Aureon's request that we reconsider our decision to modify its
section 214 authorization.
IV. Procedural Matters
52. Paperwork Reduction Act Analysis. This Order on Reconsideration
does not contain any new or modified information collection
requirements subject to the Paperwork Reduction Act of 1995, Public Law
104-13. Thus, it does not contain any new or modified information
collection burden for small business concerns with fewer than 25
employees, pursuant to the Small Business Paperwork Relief Act of 2002,
Public Law 107-198, see 44 U.S.C. 3506(c)(4).
53. Congressional Review Act. The Commission will not send a copy
of this Order on Reconsideration to Congress and the Government
Accountability Office pursuant to the Congressional Review Act, see 5
U.S.C. 801(a)(1)(A), because no rule was adopted or amended.
54. Regulatory Flexibility Act Analysis. In the Access Arbitrage
Order, the Commission provided a Final Regulatory Flexibility Analysis
pursuant to the Regulatory Flexibility Act of 1980, as amended (RFA).
We received no petitions for reconsideration of that Final Regulatory
Flexibility Analysis. In this present Order on Reconsideration, the
Commission promulgates no additional final rules. Our present action
is, therefore, not an RFA matter.
V. Ordering Clauses
55. Accordingly, it is ordered that, pursuant to sections 1, 2,
4(i), 4(j), 201, 214, 218-220, 251, 252, 403 and 405 of the
Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i),
154(j), 201, 214, 218-220, 251, 252, 403, 405, and Sec. Sec. 1.47(h),
1.429, 63.10 and 64.1195 of the Commission's rules, 47 CFR 1.47(h),
1.429, 63.10 and 64.1195, this Order on Reconsideration is adopted.
56. It is further ordered that the Petition for Reconsideration
filed by Iowa Network Services, Inc. d/b/a Aureon Network Services, is
dismissed and, on alternate and independent grounds, it is denied.
57. It is further ordered that, pursuant to Sec. 1.103 of the
Commission's rules, 47 CFR 1.103, this Order on Reconsideration shall
be effective upon release.
Federal Communications Commission.
Marlene Dortch,
Secretary, Office of the Secretary.
[FR Doc. 2020-13183 Filed 7-7-20; 8:45 am]
BILLING CODE 6712-01-P