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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. )
ORDER
Adopted: September 14, 2004 Released: September 14,
2004
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.
FEDERAL COMMUNICATIONS COMMISSION
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'').