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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
GENERAL COMMUNICATION, INC., )
v. ) EB-00-MD-016
ALASKA COMMUNICATIONS SYSTEMS )
HOLDINGS, INC. and ALASKA )
COMMUNICATIONS SYSTEMS, INC. )
d/b/a ATU TELECOMMUNICATIONS )
d/b/a ANCHORAGE TELEPHONE )
Adopted: March 29, 2001 Released: April 4, 2001
By the Commission:
In this Order, we grant the limited Request for Stay filed by ACS
of Anchorage, Inc. (f/k/a Alaska Communications Systems, Inc.,
d/b/a ATU Telecommunications d/b/a Anchorage Telephone Utility)
(``ACS'').1 The stay is conditioned on ACS's payment of an
amount equal to the damages that the Commission ordered ACS to
pay to complainant General Communication, Inc. (``GCI''),
including prejudgment interest, into an interest-bearing escrow
ACS seeks to stay the effectiveness of only the damages aspect of
our January 24 Order, in which we found that ACS exceeded its
permissible rate of return for the 1997-1998 monitoring period.3
On February 7, 2001, ACS filed a petition for review of the
January 24 Order with the United States Court of Appeals for the
District of Columbia Circuit. ACS requests that the stay remain
in effect until the Court of Appeals resolves its petition for
review.4 GCI opposes ACS's stay request, arguing primarily that
ACS has failed to show the requisite irreparable harm.5
Moreover, although GCI argues generally that it (GCI) will be
harmed if it does not receive its damages award pending
resolution of ACS's appeal, GCI offers no specific evidence of
any such harm.6
In an analogous case, we stayed the effectiveness of a refund
order pending an appeal of the order, conditioned on the movant's
payment of the refund amount into an interest-bearing escrow
account.7 Although we generally apply a four-part test in
determining whether to grant a stay request,8 we declined to
follow that test strictly in VITELCO, because we concluded that
all parties' interests were protected by the movant's payment of
an amount sufficient to cover the refund awarded into an
interest-bearing escrow account.9 Similarly, federal courts stay
the payment of damages awards as a matter of right pending an
appeal if the stay applicant posts an appropriate bond.10
Consistent with our prior precedent and with the general rule in
federal court, we grant ACS's Request for Stay, conditioned on
ACS's payment of an amount equal to the damages award, including
prejudgment interest, in an interest-bearing escrow account
pending the Court of Appeal's resolution of ACS's petition for
review.11 This will protect the interests of GCI in ensuring
that adequate funds are available to it, including interest,
should ACS not prevail on appeal.12
Accordingly, IT IS ORDERED, pursuant to sections 4(i), 4(j), and
208 of the Communications Act of 1934, as amended, 47 U.S.C. §§
154(i), 154(j), and 208, that ACS's request for stay is GRANTED,
conditioned on ACS filing with the Commission within fourteen
days of the release of this order verified proof that ACS has
placed the amount of the damages award set forth in the
Commission's January 24, 2001 Order, including prejudgment
interest, in an escrow account accruing interest at prevailing
market rates. The stay will remain effective pending resolution
by the Court of Appeals of ACS's Petition for Review of the
Commission's January 24 Order.
1. FEDERAL COMMUNICATIONS COMMISSION
5. Magalie Roman Salas
1 ACS of Anchorage, Inc. (f/k/a Alaska Communications
Systems, Inc.) Request for Stay, File No. EB-00-MD-016 (filed
Feb. 28, 2001) (``Request for Stay'').
2 General Communication, Inc. v. Alaska Communications
Systems Holdings, Inc., et al., Memorandum Opinion and Order,
FCC 01-32 (rel. Jan. 24, 2001) (``January 24 Order'') at ¶ 77.
3 In our January 24 Order, we required ACS: 1) to pay GCI
$2,765,371, plus prejudgment interest, within 90 days; 2) to
modify its monitoring report for the period in question; and 3)
until otherwise ordered, to allocate to the intrastate
jurisdiction for separations purposes the costs of carrying
internet service provider (``ISP'') traffic, and to count each
minute of an intraoffice call as two dial equipment minutes
(``DEMs''). January 24 Order at ¶¶ 77-79. ACS does not seek to
stay the latter two aspects of the January 24 Order. Request
for Stay at 3.
4 Request for Stay at 1, 9.
5 Opposition of General Communication, Inc. to the Request
for Stay of ACS of Anchorage, Inc., File No. EB-00-MD-016 (filed
Mar. 15, 2001) (``GCI Opposition'') at 4-5.
6 GCI Opposition at 7. GCI does not contend, for example,
that its ability to provide services will in any way be affected
if it does not receive the damages award on the date originally
ordered by the Commission.
7 Virgin Islands Telephone Corporation Tariff F.C.C. No. 1
Switched and Special Access Rate Adjustments, 7 FCC Rcd 4235,
4236-37, ¶ 13 (1992) (``VITELCO'').
8 See, e.g., Expanded Interconnection with Local Telephone
Company Facilities, 8 FCC Rcd 123, 124, ¶ 6 (1992) (stating that
parties may obtain a stay if they establish that: 1) they are
likely to succeed on the merits on appeal; 2) they would suffer
irreparable injury absent a stay; 3) a stay would not
substantially harm other parties; and 4) a stay would serve the
public interest (citing Virginia Petroleum Jobbers Ass'n v. FPC,
259 F.2d 921, 925 (D.C. Cir. 1958), as modified, Washington
Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841,
843 (D.C. Cir. 1977)).
9 VITELCO, 7 FCC Rcd at 4236-37, ¶ 13; see also Heritage
Cablevision Associates of Dallas, L.P. And Texas Cable TV
Association, Inc. v. Texas Utilities Electric Company, 8 FCC Rcd
373, 374, ¶ 14 (Comm. Carr. Bur. 1993) (effectively staying a
requirement that defendant refund amounts to complainant and
requiring defendant to pay the refund amounts into an interest-
bearing escrow account pending resolution of defendant's
appeal). This does not mean that applicants for stays of other
kinds of Commission decisions are relieved of the burden of
meeting the traditional four-part test for a stay.
10 See, e.g., American Manufacturers Mutual Ins. Co. v.
American Broadcasting-Paramount Theatres, Inc., 87 S.Ct 1, 3
(1966) (holding that a party taking an appeal from a federal
district court is entitled to a stay of a money judgment as a
matter of right if the party posts a bond in accordance with
11 GCI's contention that the Commission has refused to grant
stays despite offers to place funds into escrow is not
persuasive. GCI Opposition at 8. In one of the two decisions
GCI cites to supports its argument, there is no indication that
the stay movant offered to place any funds in escrow.
Investigation of Equal Access Date Elements Filed Pursuant to
Waivers of Part 69, Memorandum Opinion and Order, 1988 FCC LEXIS
658 (Comm. Carr. Bur. 1988). The second decision involved a
request to stay the effectiveness of a new rule governing price-
cap carriers. Only two of many affected carriers offered to
place funds into escrow to account for the potential amounts
they would have to pay customers once the new rule into effect.
None of the other carriers affected by the new rule made the
same offer to protect the interests of their affected customers.
Price Cap Regulation of Local Exchange Carriers, Order, 10 FCC
Rcd 11979, 11985 (1995).
12 We emphasize that, by granting the limited Request For
Stay, we do not agree with ACS that ACS is likely to prevail on
the merits on any of the issues ACS addresses in its Request for
Stay. Request for Stay at 4-7. However, because we have decided
to grant the stay for other reasons, it is not necessary to
address ACS's substantive arguments in this Order.