Before the

Federal Communications Commission

Washington, D.C. 20554

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| In the Matter of                 | * |                              |
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| HYPERION COMMUNICATIONS          | ) |                              |
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| LONG HAUL, L.P.                  | * |                              |
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| Request for Emergency Stay       | * |                              |
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ORDER

**Adopted:** April 7, 2000 **Released:** April 11, 2000

Before the Deputy Chief, Wireless Telecommunications Bureau:

# introduction and Background

1.  On March 3, 2000, Hyperion Communications Long Haul, L.P.,
    (Hyperion) filed an Application for Expedited Review[^1] and a
    Request for Emergency Stay (Stay Motion)[^2] of a decision by the
    Public Safety and Private Wireless Division (Division) denying
    Hyperion's request for waiver of the Local Multipoint Distribution
    Service's (LMDS) eligibility restriction and requiring Hyperion to
    begin divestiture proceedings in relation to two of its LMDS
    licenses.[^3] For the reasons stated herein, the request for a stay
    is granted.

2.  Section 101.1003 of the Commission's Rules currently prohibits
    incumbent local exchange carriers (ILEC) and incumbent cable
    operators from possessing an attributable interest in an LMDS A
    Block license if the LMDS licensee's geographic area significantly
    overlaps the incumbent's authorized or franchised service area.[^4]
    On December 9, 1999, Hyperion sought a permanent waiver of that rule
    so that it would not be required to divest itself of an overlap in
    service areas created when Hyperion's parent, Adelphia
    Communications Corp., acquired two incumbent cable companies with
    franchise areas significantly overlapping two of Hyperion's LMDS
    service areas (namely, BTA 359, Portsmouth, Ohio and BTA 363,
    Presque Isle, Maine). In the alternative Hyperion requested a waiver
    pending the outcome of a rulemaking proceeding expressly addressing
    the termination date of Section 101.1003.[^5] On February 1, 2000,
    the Division denied both requests and ordered Hyperion to divest its
    overlap in the subject BTAs and come into compliance with Section
    101.1003 within ninety days (*i.e.*, by May 2, 2000).[^6]

# discussion

3.  In considering a request for stay, the Commission generally
    considers four criteria: (1) a likelihood of success on the
    merits, (2) the threat of irreparable harm absent the grant of
    preliminary relief, (3) the degree of injury to other parties if
    relief is granted, and (4) that a stay will be in the public
    interest.[^7] These factors are balanced on a case-by-case basis and
    a request for stay may be granted on account of a particularly
    strong showing as to at least one of the factors, regardless of an
    absence of showing of another factor.[^8] We find that Hyperion has
    made an adequate showing such that a stay is appropriate.

4.  Hyperion contends that there is a strong likelihood that its
    application for review will succeed on its merits.[^9] First,
    Hyperion seeks a reversal of the Division's *Order* only to the
    portion denying its request for an extension of the divestiture
    requirement until the conclusion of the eligibility restriction
    rulemaking.[^10] Second, Hyperion argues that, in the past, the
    Commission has allowed extensions involving its divestiture rules
    where the Commission anticipates an imminent rule change.[^11]
    Therefore, Hyperion argues that Commission precedent squarely
    supports its request.

5.  Hyperion also states that requiring it to come into compliance with
    the eligibility restriction now would force Hyperion to forfeit a
    "valuable means of achieving last mile connectivity in the affected
    BTAs . . . plac\[ing\] the company at a competitive disadvantage to
    other CLECs with which it competes. . . ."[^12] Hyperion also states
    that its "LMDS licenses are themselves unique assets that will not
    be possible to replace once they are divested."[^13]

6.  In addition, Hyperion argues that, if the Commission does indeed
    extend the applicability of the rule section, allowing it to defer
    action on the subject BTAs will at most postpone any required
    divestiture until the conclusion of the Section 101.1003 sunset
    rulemaking proceeding. Therefore, it states that this brief delay
    would cause no material harm to any interested parties.[^14]
    Finally, Hyperion contends that requiring it to divest prior to the
    conclusion of the rulemaking is contrary to the public interest,
    because it would hinder Hyperion's development and its ability to
    offer competitive local exchange services.[^15]

# conclusion

7.  Hyperion has offered an adequate showing that a stay is required in
    this instance. We agree that the Commission's eligibility
    restriction proceeding may have a material impact on Hyperion's
    divestiture. Specifically, the rulemaking may make available other
    divestiture options for Hyperion or it may negate the necessity for
    Hyperion to divest itself of its overlap at all. Moreover, we accept
    Hyperion's conclusion that, once divested, it will not be able to
    recover its LMDS licenses. Accordingly, we will stay the Division's
    *Order* pending the outcome of the Commission's rulemaking
    addressing the termination date of Section 101.1003. We clarify
    that, by this action, we are not rescinding the Division's ninety
    day extension of Hyperion's initial compliance date required by
    Section 101.1003(f).[^16] Rather, we are further extending the
    cut-off date for Hyperion's divestiture, if necessary, until ninety
    days following the adoption of either a *Report and Order* in the
    eligibility restriction proceeding, or a *Memorandum Opinion and
    Order* addressing Hyperion's application for review, whichever is
    earlier.

# ordering clauseS

8.  IT IS ORDERED that, pursuant to Sections 1 and 4(i) of the
    Communications Act, as amended, 47 U.S.C. §§ 151, 154(i), Hyperion's
    Request for Stay, filed on March 3, 2000, IS GRANTED to the extent
    stated herein.

9.  This action is taken pursuant to delegated authority granted under
    Section 155(c) of the Communications Act of 1934, as amended, 47
    U.S.C. § 155(c), and Sections 0.131 and 0.331 of the Commission's
    Rules, 47 C.F.R. §§ 0.131, 0.331.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Kathleen O'Brien Ham
>
> Deputy Chief, Wireless Telecommunications Bureau

[^1]: Hyperion Communications Long Haul, L.P., Application for Expedited
    Review (filed March 3, 2000) (Application for Review). This *Order*
    addresses only the stay request. The application for review will be
    considered subsequently.

[^2]: Hyperion Communications Request for Emergency Stay (filed March 3,
    2000).

[^3]: *See* Hyperion Communications Long Haul, L.P., Request for Waiver
    of Section 101.1003, *Order*, DA 00-184 (WTB PSPWD rel. February 2,
    2000) (*Order*).

[^4]: 47 C.F.R. § 101.1003. A significant overlap occurs when at least
    ten percent of the population of the LMDS basic trading area (BTA)
    is located within the incumbents authorized or franchised service
    area. When such an overlap does occur, the LMDS licensee must
    partition and divest either the portion of its LMDS service area or
    the authorized franchise area that exceeds the overlap restriction
    within ninety days. 47 C.F.R. § 101.1003(a)-(f).

[^5]: The LMDS eligibility restriction is due to terminate on June 30,
    2000, but can be extended by the Commission if necessary. The
    Commission is at present considering the termination date in a
    rulemaking proceeding. *See* Rulemaking to Amend Parts 1, 2, 21, and
    25 of the Commission's Rules to Redesignate the 27.5-29.5 GHz
    Frequency Band, to Reallocate the 29.5-30.0 GHz Frequency Band, to
    Establish Rules and Policies for Local Multipoint Distribution
    Service and for Fixed Satellite Services, *Sixth Notice of Proposed
    Rule Making*, CC Docket No. 92-297, 14 FCC Rcd 21520 (1999).

[^6]: *Order*, ¶ 12.

[^7]: *See e.g.,* Biennial Regulatory Review \-- Amendments of Parts 0,
    1, 13, 22, 24, 26, 27, 80, 87, 90, 95, 97, and 101 of the
    Commission's Rules to Facilitate the Development and Use of the
    Universal Licensing System in the Wireless Telecommunications
    Services, *Memorandum Opinion and Order*, 14 FCC Rcd 9305, 9307 ¶ 4
    (1999); *see also* *Virginia Petroleum Jobbers Ass'n v. FPC*, 259
    F.2d 921, 925 (D.C. Cir. 1958); AT&T v. Ameritech, *Memorandum
    Opinion and Order*, 13 FCC Rcd 14508 (1998).

[^8]: *AT&T v. Ameritech*, 13 FCC Rcd at 14516 n.43; *United States v.
    Southwestern Cable Co.,* 392 U.S. 157, 180 (1968).

[^9]: Application for Review at 4.

[^10]: *Id*. at 5.

[^11]: *Id.* at 5-6. Hyperion likens it situation to the CMRS spectrum
    cap cases, where the Commercial Wireless Division granted
    divestiture extensions due to the Commission's reevaluation of the
    spectrum cap rules. *See, e.g*., Western Wireless PCS III, *Order*,
    11 FCC Rcd 14487 (1996); Pioneer Telephone Association, Inc.,
    *Order*, DA 99-1823, 1999 WL 694140 (WTB 1999).

[^12]: Application for Review at 6-7.

[^13]: *Id*. at 7.

[^14]: *Id*.

[^15]: *Id.* at 9.

[^16]: *Order*, ¶ 12.