******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) ) Hickory Tech Corporation and ) ASD File No. 98-71 Heartland Telecommunications Company of Iowa ) ) Petition for Waiver ) of Section 69.605(c) ) of the Commission's Rules ) ORDER Adopted: June 30, 1998 Released: July 1, 1998 By the Chief, Accounting Safeguards Division: 1. Hickory Tech Corporation ("Hickory Tech") and its subsidiary, Heartland Telecommunications Company of Iowa ("Heartland") (jointly referred to as "Petitioners"), have filed a Request for Stay ("Request") of a portion of a Memorandum Opinion and Order released by the Accounting and Audits Division ("Division") on February 14, 1997. In pertinent part, the Memorandum Opinion and Order ruled that Heartland must operate as a cost settlement company and that its affiliate, Amana Colonies Telephone Company ("Amana Colonies") must convert from average schedule status to cost settlement status by July 1, 1998. Petitioners request a stay pending Commission action on their Application for Review of the Memorandum Opinion and Order, filed March 17, 1997. 2. The Commission generally employs a four-part test under the standard set forth in Virginia Petroleum Jobbers Association v. Federal Power Commission in determining whether to grant motions for stay. Under this standard, the petitioner must demonstrate (1) that it is likely to prevail on the merits; (2) that it will suffer irreparable harm if a stay is not granted; (3) that other interested parties will not be harmed if the stay is granted; and (4) that the public interest favors grant of the stay. As discussed below, we find that a stay is warranted. 3. First, Petitioners present various procedural and substantive issues in an Application for Review of the Memorandum Opinion and Order. We need not reach the question of the likelihood of Petitioners' success on the merits of the issues it raises in its Application for Review because we believe Petitioners meet the other factors for granting the stay. Second, Petitioners have demonstrated that, absent a stay, they will suffer irreparable harm by having to bear the administrative burden and expense of performing cost studies required to convert to cost settlement status. Petitioners estimate that such cost studies would cost "well over" $80,000. Although financial hardship alone will not necessarily satisfy the irreparable harm criteria, in this situation, denying the stay would cause Petitioners to expend substantial resources that would be unnecessary--and unrecoverable--if they later were to succeed in their Application for Review. Third, we find that granting the stay will not harm any third parties. Our action here only applies to Hickory Tech and Heartland until the Commission addresses their Application for Review. Finally, we recognize that requiring Petitioners to convert to cost settlement status by July 1 would require substantial company resources to implement the necessary accounting changes. Thus, we are persuaded that in the interest of fairness, a stay is appropriate in this instance. 4. For the above reasons, we conclude that the Memorandum and Order should be stayed to the extent that it requires Hickory Tech and Heartland to convert to cost settlement status on July 1, 1998. This stay will remain in effect until the Commission addresses Petitioners' Application for Review. 5. The stay of the affected rule is procedural in nature, and therefore is not subject to the notice and comment requirements of the Administrative Procedure Act. Pursuant to 5 U.S.C.  553(d)(3), we further conclude that good cause exists to stay these rules as of the adoption date of this Order, as the rules would otherwise go into effect on July 1, 1998. Until such time as the stay is lifted, Hickory Tech and Heartland may retain their average schedule status. 6. Accordingly, IT IS ORDERED, pursuant to Sections 4(i) and Sections 201 and 202 of the Communications Act, as amended, 47 U.S.C.  154(i), 201-202, and the authority delegated in Sections 0.91 and 0.291 of the Commission's rules, 47 C.F.R.  0.91 and 0.291, that Hickory Tech's and Heartland's Request for Stay IS GRANTED to the extent indicated herein. FEDERAL COMMUNICATIONS COMMISSION Kenneth P. Moran Chief, Accounting Safeguards Division