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                           Before the
                Federal Communications Commission
                     Washington, D.C.  20554

EarthLink, Inc.,                 )
      Complainant,               )
                 v.              )    File No. EB-04-MD-006
SBC Communications, Inc.,        )
SBC Advanced Solutions, Inc.,    )
      Defendants.                )


 Adopted:  September 14, 2004         Released:  September 14, 

By the Chief, Enforcement Bureau:

     1.   This Order denies Defendants' Request for Stay1 of part 
of an interlocutory discovery order that the Market Disputes 
Resolution Division issued on August 25, 2004.2  In particular, 
defendants SBC Communications, Inc. and SBC Advanced Solutions, 
Inc. (collectively, ``SBC'') object to the Discovery Order to the 
extent it requires production of cost data relating to SBC's 
internet service provider affiliates (known collectively as 
``SBCIS'').  We find the Request for Stay to be unpersuasive.3

     2.   SBC argues that a stay is warranted under the 
guidelines set forth in Virginia Petroleum Jobbers Association v. 
Federal Power Commission, which include (1) whether the party 
seeking a stay has made a strong showing that it is likely to 
prevail on the merits; (2) whether, without a stay, the 
requesting party would be irreparably harmed; (3) whether 
issuance of a stay substantially would harm other parties to the 
proceeding; and (4) whether a stay is in the public interest.4  
Having carefully reviewed the argument proffered by SBC in light 
of Virginia Petroleum Jobbers, we decline to enter a stay.5  
Specifically, SBC's allegations of irreparable harm are largely 
speculative6 and entirely unsupported.7  This type of harm is 
insufficient to warrant a stay request.8  Moreover, SBC has not 
shown that the mere production of the ordered information 
(subject to the Commission's confidentiality rules) - as opposed 
to an adverse ruling on the merits of the case - will result in 
the purported harm it has identified.9

     3.   Accordingly, IT IS ORDERED, pursuant to sections 1, 
4(i), 4(j), and 208 of the Communications Act of 1934, as 
amended, 47 U.S.C. §§ 151, 154(i), 154(j), 208, and sections 
0.111, 0.311, and 1.727 of the Commission's rules, 47 C.F.R. §§ 
0.111, 0.311, 1.727, that Defendants' Request for Stay is DENIED.


                         David H. Solomon
                         Chief, Enforcement Bureau

1    Defendants' Request for Stay, File No. EB-04-MD-006 (filed 
Aug. 31, 2004) (``Request for Stay'').  Complainant EarthLink, 
Inc. opposes the Request for Stay.  See EarthLink Opposition to 
SBC Stay Request, File No. EB-04-MD-006 (filed Sept. 7, 2004).  
(``EarthLink's Opposition'').  Section 1.727(f) of the 
Commission's rules states that ``[n]o reply may be filed to an 
opposition to a motion.''  47 C.F.R. § 1.727(f).  On 
September 13, 2004, SBC filed a reply to EarthLink's Opposition. 
See Defendants' Reply in Support of Request for Stay (``SBC's 
Reply'').  SBC's Reply, accordingly, is an unauthorized pleading, 
which we hereby strike.  Nevertheless, even were we to consider 
SBC's Reply, we find nothing in it that would change our 
determination (explained below) that SBC has failed to satisfy 
the criteria for obtaining a stay. 
2    Order, File No. EB-04-MD-006 (rel. Aug. 25, 2004) 
(``Discovery Order'').  In addition to the Request for Stay, SBC 
simultaneously filed an Application for Review of the Discovery 
Order.  See Defendants' Application for Review, File No. EB-04-
MD-006 (filed Aug. 31, 2004) (``Application for Review'').  
Consistent with long-standing policy, the Commission will address 
the Application for Review in conjunction with its ruling on the 
merits of the claims raised in this proceeding.  See 
Implementation of the Telecommunications Act of 1996, Amendment 
of Rules Governing Procedures to be Followed When Formal 
Complaints are Filed Against Common Carriers, Order on 
Reconsideration, 16 FCC Rcd 5681, 5697-98, ¶ 38 (2001).   
3    Given our denial of the Request for Stay, the 
discovery/briefing schedule contained in Part IV of the Discovery 
Order remains in place.
4    Request for Stay at 2 (citing Virginia Petroleum Jobbers 
Ass'n v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958) (``Virginia 
Petroleum Jobbers'')).
5    We believe that analysis of the ``irreparable harm'' element 
disposes of the Request for Stay.  Nonetheless, we note that SBC 
similarly has not made a compelling showing with respect to the 
other three Virginia Petroleum Jobbers factors.
6    See Request for Stay at 3 (the Discovery Order ``will likely 
cause [SBCIS] to lose existing subscribers'' and ``threatens to 
restrain SBCIS's ability to compete freely in the provision of 
broadband Internet access services'') (emphasis added); 4 
(``cable companies and other competitors could seize the 
opportunity to implement targeted price reductions of their own 
in an effort to win subscribers from SBCIS'') (emphasis added).  
7    Contrary to section 1.727 of the Commission's rules, the 
Request for Stay contains only unsupported factual assertions.  
47 C.F.R. § 1.727(b) (``All facts relied upon in motions must be 
supported by documentation or affidavits . . . .'').
8    See Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 
1985) (injunctive relief ``will not be granted against something 
merely feared as liable to occur at some indefinite time''; 
rather, the party seeking a stay must show that ``[t]he injury 
complained of [is] of such imminence that there is a `clear and 
present' need for equitable relief to prevent irreparable harm'') 
(citing Connecticut v. Massachusetts, 282 U.S. 660, 674 (1931) 
and Ashland Oil, Inc. v. FTC, 409 F. Supp. 297, 307 (D.D.C.), 
aff'd, 548 F.2d 977 (D.C. Cir. 1976)); id. (``Bare allegations of 
what is likely to occur are of no value since the court must 
decide whether the harm will in fact occur.''). 
9    See Wisconsin Gas v. FERC, 758 F.2d at 674 (a party seeking 
a stay ``must show that the alleged harm will directly result 
from the action which the movant seeks to enjoin'').