On September 27, 2019, the FCC did something it rarely does. When it released its Access Stimulation Order in Docket 18-155, the Commission made some significant changes from its draft order made public just two weeks earlier. Specifically, the Commission changed its proposed new definition for access stimulation and decided to apply the new definition differently to CLECs and rural ILECs.

One thing that didn’t change is the fact that the Commission finally adopted rules to end the opportunities that exist in the current switched access system in which all access customers subsidize “free” high-volume calling services which have been generating millions in revenues for access stimulators. The agency adopts rules requiring access-stimulating LECs—rather than IXCs—to bear financial responsibility for the tariffed tandem switching and transport charges associated with the delivery of traffic from an IXC to the access-stimulating LEC’s end office or its functional equivalent. Moreover, access stimulating LECs must now designate in the Local Exchange Routing Guide (LERG), or by contract, the route through which an IXC can reach that LEC’s end office or functional equivalent.

But then there are the changes.

In the draft order, the Commission proposed an expansion of the current definition of “access stimulation” to include situations in which the access stimulating LEC did not have a revenue sharing agreement but has at least 6 times more minutes of inbound calling traffic than outbound calling traffic. For purposes of this definition, it treated CLECs and rural ILECs alike. The Commission did not adopt these proposals.

Instead, the Commission leaves the current definition for access stimulation in place. That definition requires,

that the involved LEC has a revenue sharing agreement and, second, that it meets one of two traffic triggers. The LEC must either have an interstate terminating-to-originating traffic ratio of at least 3:1 in a calendar month or have had more than a 100% growth in interstate originating and/or terminating switched access minute-of-use in a month compared to the same month in the preceding year. (Report and Order and Modification of Section 214 Authorizations, Docket 18-155, Released September 27, 2019 at para. 43.).

The Commission now adds two alternative tests to this definition, one for CLECs and one for rural ILECs. Neither requires any revenue sharing agreement to be in place.

First, under our newly amended rules, competitive LECs with an interstate terminating-to-originating traffic ratio of at least 6:1 in a calendar month will be defined as engaging in access stimulation.

Second, under our newly amended rules, we define a rate-of-return LEC as engaging in access stimulation if it has an interstate terminating-to-originating traffic ratio of at least 10:1 in a three calendar month period and has 500,000 minutes or more of interstate terminating minutes-of-use per month in an end office in the same three calendar month period. These factors will be measured as an average over the same three calendar-month period. Our decision to adopt different triggers for competitive LECs as compared to rate-of-return LECs reflects the evidence in the record that there are structural barriers to rate-of-return LECs engaging in access stimulation, and at the same time, a small but significant set of rate-of-return LECs can experience legitimate call patterns that would trip the 6:1 trigger. Id., at 43).

The Commission notes that it decided to expand the access stimulation definition to ensure LECs could not engage in the practice without relying on direct forms of revenue sharing. In addition, it adopted these two alternative tests to ensure that it identifies those LECs engaging in access stimulation while not creating an overbroad definition which continues the disputes between access providers and their customers. For CLECs that means

we adopt an alternative test of the access stimulation definition for competitive LECs, which requires a higher terminating-to-originating traffic ratio than the 3:1 ratio currently in place. We find that a 6:1 or higher terminating-to-originating traffic ratio for competitive LECs provides a clear indication that access stimulation is occurring, even absent a revenue sharing agreement. (Id., at. 47).

For rural rate-of-return ILECs the Commission chooses a different access stimulation test which relies on a high terminating-to-originating ratio and a significant number of minutes of use per month:

We adopt a separate alternative test for determining whether a rate-of-return LEC is engaged in access stimulation in part to address NTCA and other commenters’ concerns that “eliminating the revenue sharing component of the definition of access stimulation . . . could immediately have the inadvertent effect of treating innocent RLECs as access stimulators when they do not engage in that practice at all.” In adopting a second alternate access-stimulation definition applicable only to rate-of- return LECs we recognize that the majority of those carriers are small, rural carriers with different characteristics than competitive LECs. For example, unlike access-stimulating LECs that only serve high-volume calling providers, rate-of-return carriers, which serve small communities and have done so for years, would not be able to freely move stimulated traffic to different end offices. In addition, as NTCA explains, such carriers also may have traffic ratios that are disproportionately weighted toward terminating traffic because their customers have shifted their originating calls to wireless or VoIP technologies...We also agree with NTCA that small rate-of-return LECs’ traffic may be more sensitive to seasonal changes in the ratio of their terminating-to-originating access minutes because of the unique geographical areas they serve and thus may have spikes in call volume with a greater impact on traffic ratios than would be experienced by carriers with a larger base of traffic spread over a larger, more populated, geographical area. (Id., at 49).

The Order takes effect 30 days after publication in the Federal Register. Let’s hope it puts an end to access stimulation once and for all.