662 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations

the balance due (including accrued and

unpaid interest) based upon the

installment payment terms for which

they qualify under the rules. The

financing documents must be returned

to the U.S. Treasury within thirty (30)

days of the Public Notice conditionally

granting the partial assignment

application. Failure by either party to

meet this condition will result in the

automatic cancellation of the grant of

the partial assignment application. The

interest rate, established pursuant to

§ 1.2110(e)(3)(i) of this chapter at the

time of the grant of the initial license in

the market, shall continue to be applied

to both parties’ portion of the balance

due. Each party will receive a license for

their portion of the partitioned market

or disaggregated spectrum. (iii) A default on an obligation will

only affect that portion of the market

area held by the defaulting party. (iv) Partitionees and disaggregatees

that qualify for installment payment

plans may elect to pay some of their pro

rata portion of the balance due in a

lump sum payment to the U.S. Treasury

and to pay the remaining portion of the

balance due pursuant to an installment

payment plan. (e) License term. The license term for

a partitioned license area and for

disaggregated spectrum shall be the

remainder of the original licensee’s

license term as provided for in § 24.15.

(f) Construction requirements—(1)

Requirements for partitioning. Parties

seeking authority to partition must meet

one of the following construction

requirements: (i) The partitionee may certify that it

will satisfy the applicable construction

requirements set forth in § 24.203 for the

partitioned license area; or (ii) The original licensee may certify

that it has or will meet its five-year

construction requirement and will meet

the ten-year construction requirement,

as set forth in § 24.203, for the entire

license area. In that case, the partitionee

must only satisfy the requirements for

‘‘substantial service,’’ as set forth in

§ 24.16(a), for the partitioned license

area by the end of the original ten-year

license term of the licensee.

(iii) Applications requesting partial

assignments of license for partitioning

must include a certification by each

party as to which of the above

construction options they select. (iv) Partitionees must submit

supporting documents showing

compliance with the respective

construction requirements within the

appropriate five- and ten-year

construction benchmarks set forth in

§ 24.203.

(v) Failure by any partitionee to meet

its respective construction requirements

will result in the automatic cancellation

of the partitioned or disaggregated

license without further Commission

action.

(2) Requirements for disaggregation.

Parties seeking authority to disaggregate

must submit with their partial

assignment application a certification

signed by both parties stating which of

the parties will be responsible for

meeting the five- and ten-year

construction requirements for the PCS

market as set forth in § 24.203. Parties

may agree to share responsibility for

meeting the construction requirements.

Parties that accept responsibility for

meeting the construction requirements

and later fail to do so will be subject to

license forfeiture without further

Commission action.

[FR Doc. 97–98 Filed 1–3–97; 8:45 am]

BILLING CODE 6712–01–P

47 CFR Part 51

[CC Docket No. 96–98; FCC 96–483]

Implementation of the Local

Competition Provisions in the

Telecommunications Act of 1996

AGENCY: Federal Communications

Commission.

ACTION: Final rule; motion for stay and

notification of court stay.

SUMMARY: The Order released December

18, 1996 dismisses the motion for stay

of three rules adopted in the First Report

and Order, (August 29, 1996), filed by

the Rural Telephone Coalition (RTC) to

the extent that RTC seeks a stay of 47

CFR 51.809, and otherwise denies the

motion for stay. Denial of the motion for

stay allows the rules relating to local

competition which have not been stayed

by the United States Court of Appeals

for the Eighth Circuit (Iowa Utilities

Board v. Federal Communications

Commission, No. 96–3321 et al., 1996

WL 589284 (8th Cir. 1996 Oct. 15,

1996)) to go into effect without delay.

EFFECTIVE DATE: Sections 51.501–51.515

(inclusive), 51.601–51.611 (inclusive),

51.705–51.715 (inclusive), and 51.809

are stayed effective October 15, 1996

pursuant to court order. Motion for stay

by the Rural Telephone Coalition is

dismissed effective January 6, 1997.

FOR FURTHER INFORMATION CONTACT: Lisa

Gelb, Attorney, Common Carrier

Bureau, Policy and Program Planning

Division, (202) 418–1580.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s Order

adopted December 18, 1996, and

released December 18, 1996. The full

text of this Order is available for

inspection and copying during normal

business hours in the FCC Reference

Center (Room 239), 1919 M St., NW.,

Washington, DC. The complete text also

may be obtained through the World

Wide Web, at http://www.fcc.gov/

Bureaus/Common Carrier/Orders/

fcc96483.wp, or may be purchased from

the Commission’s copy contractor,

International Transcription Service,

Inc., (202) 857–3800, 2100 M St., NW.,

Suite 140, Washington, DC 20037.

Regulatory Flexibility Analysis

There are no new rules or

modifications to existing rules adopted

in this Order.

Paperwork Reduction Act

There are no new or modified

collections of information required by

this Order.

Synopsis of Order

I. Introduction

1. On August 1, 1996, the Commission

adopted rules implementing the local

competition provisions of the

Telecommunications Act of 1996 (1996

Act). On October 2, 1996, the Rural

Telephone Coalition (RTC) filed a

motion for stay of three rules adopted in

the First Report and Order, 61 FR 45476

(August 29, 1996), pending judicial

review. Oppositions to the motion for

stay were filed by MCI, the Association

for Local Telecommunications Service

(ALTS), and the National Cable

Television Association (NCTA). For the

reasons set forth below, we dismiss the

motion in part, and otherwise deny the

motion for stay.

II. Background

2. Section 251(c) of the

Communications Act of 1934, as

amended, (the Act) imposes on

incumbent local exchange carriers

(LECs) obligations regarding

interconnection, resale of services, and

unbundled network elements. Section

251(f)(1) of the Act provides that a rural

telephone company is exempt from the

requirements of section 251(c) unless

the state commission finds that the rural

carrier has received a bona fide request

for interconnection, services, or network

elements, and the state commission

determines that the request ‘‘is not

unduly economically burdensome, is

technically feasible, and is consistent

with section 254 (other than subsections

(b)(7) and (c)(1)(D) thereof).’’ Section

251(f)(2) of the Act permits LECs ‘‘with

fewer than 2 percent of the Nation’s

subscriber lines installed nationwide’’

to petition a state commission for

suspension or modification of

application of one or more requirements

of sections 251(b) or 251(c). The petition
Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations 663

shall be granted to the extent that, and

for such duration as, the state

commission determines that the

suspension or modification:

(A) is necessary—

(i) to avoid a significant adverse

economic impact on users of

telecommunications services generally;

(ii) to avoid imposing a requirement

that is unduly economically

burdensome; or

(iii) to avoid imposing a requirement

that is technically infeasible; and

(B) is consistent with the public

interest, convenience, and necessity.

3. In the First Report and Order, and

in § 51.405 of the Commission’s rules,

the Commission held that, once a

requesting carrier has made a bona fide

request for interconnection, services, or

network elements, incumbent rural

LECs bear the burden of proving that

they should continue to be exempt from

the requirements of section 251(c). The

Commission also offered guidance on

what would constitute an ‘‘unduly’’

economically burdensome requirement

for purposes of sections 251(f)(1) and

251(f)(2), holding that the incumbent

rural carrier must offer evidence that the

application of the requirements of

section 251(c) of the Act would be likely

to cause economic burden ‘‘beyond the

economic burden that is typically

associated with efficient competitive

entry.’’

4. Section 252(a) of the Act, entitled

‘‘Agreements Arrived at Through

Negotiation,’’ provides, in part, that,

‘‘[t]he agreement, including any

interconnection agreement negotiated

before the date of enactment of the

Telecommunications Act of 1996, shall

be submitted to the State commission

under subsection (e) of this section.’’ In

the First Report and Order, and as set

forth in Section 51.303 of its rules, the

Commission concluded that

interconnection agreements that were

reached before the 1996 Act was

enacted must be submitted to the state

commission for review under section

252, including agreements between

adjacent incumbent local service

providers. In addition, section 252(i) of

the Act requires an LEC to make

available ‘‘any interconnection, service,

or network element provided under an

agreement approved under’’ section 252

to which the LEC is a party to any other

requesting telecommunications carrier

upon the same terms and conditions as

those provided in the agreement. In the

First Report and Order and § 51.809 of

its rules, the Commission interpreted

that provision to require an incumbent

LEC to make available to a requesting

telecommunications carrier, upon the

same rates, terms, and conditions, any

individual interconnection, service, or

network element arrangement contained

in any agreement approved by the state

under section 252 to which the

incumbent LEC is a party.

III. Summary of the Motion and

Oppositions

5. RTC requests a stay of the

Commission rules described above. RTC

contends that the Commission

unlawfully modified the standard to be

used by states in considering whether to

terminate the rural exemption. RTC

contends that placing the burden of

proof on the incumbent LEC, and the

Commission’s definition of ‘‘unduly

economically burdensome,’’ will cause

rural LECs to suffer irreparable harm.

RTC claims that certain rural LECs will

lose exemptions that they would not

have lost if the requesting carrier bore

the burden of proof. RTC also asserts

that the Commission’s rules will cause

rural LECs to incur costs and expend

resources to retain exemptions from

section 251(c) obligations. RTC further

argues that the Commission’s rules

ignore two of the three statutory factors

that must be considered in deciding

whether to terminate a rural LEC’s

exemption. RTC also contends that the

Commission failed to give adequate

public notice of its intent to establish a

test concerning the burden of proof and

its intent to establish a rule interpreting

the phrase ‘‘unduly economically

burdensome.’’

6. In addition, RTC maintains that the

Commission exceeded its authority by

requiring incumbent LECs to file with

state commissions interconnection

agreements with neighboring LECs that

predate the 1996 Act, and by requiring

incumbent LECs to make the individual

provisions of such agreements available

to competing carriers. RTC asserts that

requiring incumbent LECs to file

interconnection agreements negotiated

prior to the 1996 Act ultimately will

force rural LECs to pay higher

interconnection rates that in turn will

result in higher rates for rural LEC’s

customers.

7. In general, parties opposing the stay

motion contend that RTC’s motion does

not meet the four-part test for granting

a stay of an agency order. These parties

contend that RTC is unlikely to prevail

on the merits of its claims; that it will

suffer no irreparable harm if a stay is not

granted; that grant of a stay will harm

third parties; and that the public interest

weighs in favor of denying a stay.

IV. Discussion

8. As a threshold matter, the United

States Court of Appeals for the Eighth

Circuit granted a stay of certain rules the

Commission adopted in the First Report

and Order (i.e., 47 CFR 51.501–51.515,

51.601–51.611, 51.705–51.715, and

51.809). Therefore, we need not address

RTC’s motion for administrative stay of

§ 51.809.

9. We examine the remaining portions

of RTC’s motion for stay pursuant to

well-established legal principles. A

party seeking a stay is required to

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

the grant of a stay.

10. With respect to RTC’s motion for

stay of §§ 51.303, concerning filing of

interconnection agreements negotiated

before the 1996 Act became law, and

51.405, concerning rural carriers’

burden of proof under section 251(f)(1)

of the Act, we conclude that RTC has

not shown that it will suffer irreparable

harm absent a stay. A concrete showing

of irreparable harm is an essential factor

in any request for a stay. As the U.S.

Court of Appeals for the District of

Columbia Circuit has observed,

‘‘economic loss does not, in and of

itself, constitute irreparable harm.’’

Moreover, competitive harm is merely a

type of economic loss, and ‘‘revenues

and customers lost to competition

which can be regained through

competition are not irreparable.’’ Even if

the alleged harm is not fully remediable,

the irreparable harm factor is not

satisfied absent a demonstration that the

harm is ‘‘both certain and great; * * *

actual and not theoretical.’’ We find that

RTC’s claims of harm do not satisfy

these exacting standards.

11. RTC argues that certain rural LECs

will be irreparably harmed by our

finding that the LECs seeking to avoid

application of section 251(c) bear the

burden of proof under section 251(f),

and by our interpretation that, in order

for a requirement to be ‘‘unduly

economically burdensome’’ within the

meaning of section 251(f), it must cause

economic burden beyond the economic

burden typically associated with

efficient competitive entry. RTC

complains that the Commission’s

‘‘burden of proof and standards

requirements substantially increase the

probability that the exemption will be

terminated.’’

12. We find that RTC has not

demonstrated that application of these

rules has caused or will cause harm to

rural incumbent LECs that is certain,

irreparable, or great. As NCTA and MCI

assert, RTC has not shown that rural

LECs would otherwise be exempt from

the obligations of section 251(c), absent
664 Federal Register / Vol. 62, No. 3 / Monday, January 6, 1997 / Rules and Regulations

the Commission’s rules. Moreover, even

if RTC could establish with certainty

that rural carriers would lose

exemptions as a result of the

Commission’s rules, its contention that

LECs would be irreparably harmed is

speculative. First, economic harm that

results from loss of customers to

competitors does not constitute

irreparable harm. Second, the

Commission stated in the First Report

and Order that requesting carriers must

compensate the incumbent LEC for the

costs of services, interconnection, or

unbundled elements that the incumbent

provides upon request, and RTC has not

shown why, in light of such

compensation, it would suffer

irreparable harm from complying with

the requirements of section 251(c). Nor

has RTC demonstrated that any harm a

rural LEC arguably might suffer would

be substantial.

13. RTC also asserts that, because the

Commission has placed the burden of

proof on rural carriers that seek to retain

exemptions from section 251(c), they

will incur costs that they would not

otherwise bear. For example, RTC

contends that rural LECs will need to

bear costs of hiring attorneys, cost

consultants, and economists. If the

Commission’s rule is overturned by the

court, RTC argues, rural LECs will have

suffered irreparable harm by incurring

these costs. NCTA and MCI contend that

RTC has provided no evidence that,

absent our rules, it would not bear

similar or identical costs to respond to

bona fide requests for interconnection,

services or network elements. We find

no basis for concluding that rural

carriers will bear costs as a result of our

rules that they would not otherwise

bear. Moreover, courts have held that

‘‘[m]ere litigation expense, even

substantial and unrecoupable cost, does

not constitute irreparable injury.’’

14. RTC further argues that the rule

requiring the filing of interconnection

agreements that predate the 1996 Act

will irreparably harm rural LECs and

their customers by ‘‘threaten[ing] higher

rates, more toll calls, or both, for the

affected rural customers.’’ This

argument is speculative, because it

assumes without substantiation that

existing agreements will have to be

renegotiated, and that the resulting

terms will be significantly less favorable

to affected rural LECs. As the District of

Columbia Circuit has noted, in

evaluating a petitioner’s allegations of

irreparable harm, ‘‘[b]are allegations of

what is likely to occur are of no value’’

because the critical issue is ‘‘whether

the harm will in fact occur.’’ RTC

provides no evidence to support its

allegation that higher rates for

customers will in fact occur if § 51.303

of the Commission’s rules is not stayed.

15. Because, as discussed above, RTC

has failed to demonstrate that any rural

telephone company would suffer

irreparable harm due to the application

of § 51.303 or 51.405 of our rules, we

need not address RTC’s remaining

arguments concerning the other three

parts of the test governing a motion for

stay. Nevertheless, we take this

opportunity to clarify certain aspects of

§ 51.405(c) of our rules that RTC

challenges in its petition for stay.

Section 51.405(c) states:

In order to justify continued exemption

under section 251(f)(1) of the Act once a bona

fide request has been made, an incumbent

LEC must offer evidence that the application

of the requirements of section 251(c) of the

Act would be likely to cause undue economic

burden beyond the economic burden that is

typically associated with efficient

competitive entry.

RTC erroneously contends that the

Commission’s rules implementing

§ 251(f)(1) improperly ignore two of the

three statutory criteria that a state

commission must consider in

determining whether to remove a rural

incumbent LEC’s exemption from the

requirements of § 251(c) of the Act.

RTC’s argument is not based on any

affirmative statement in our rules that

state commissions may disregard

evidence of technical infeasibility or

harm to universal service in deciding

whether to remove an exemption.

Rather, RTC incorrectly infers from the

fact that our rules address only one of

the statutory criteria for evaluating such

issues that we intended for state

commissions to ignore the other two

criteria. In § 51.405(c) of our rules, we

interpreted the meaning of the statutory

term ‘‘unduly’’ as it modifies

‘‘economically burdensome,’’ because

we found that this phrase is susceptible

to differing interpretations. We did not

find it necessary to adopt rules that

addressed the meaning of ‘‘technical

feasibility’’ or ‘‘universal service.’’ That

decision, however, does not in any way

affect a state’s responsibility to consider

all three of the factors set forth in

§ 251(f)(1)(A). We similarly interpreted

the phrase ‘‘unduly economically

burdensome’’ in adopting 47 CFR

51.405(d), and did not thereby intend to

limit LECs’ rights to seek suspensions or

modifications by other means provided

in § 251(f)(2).

V. Ordering Clause

16. Accordingly, It is ordered that the

motion for stay filed by the Rural

Telephone Coalition is dismissed to the

extent that it seeks a stay of 47 CFR

51.809, and otherwise is Denied.

Federal Communications Commission.

William F. Caton,

Acting Secretary.

[FR Doc. 97–50 Filed 1–3–97; 8:45 am]

BILLING CODE 6712–01–P

47 CFR Part 73

[MM Docket No. 93–28, RM–8172, RM–8299]

FM Broadcasting Services; Whitley

City, KY, Colonial Heights, Morristown

and Tazewell, TN

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: The Chief, Policy and Rules

Division granted the petition for

reconsideration, filed by Murray

Communications, of the Report and

Order in this proceeding, 59 FR 60077,

published November 22, 1994, by

rejecting the rule making proposal (RM–

8172) granted by the Report and Order,

and, instead, granting the

counterpropopsal (RM–8299),

substituting Channel 240C2 for 290A at

Colonial Heights, Tennessee, Channel

290A for Channel 231A at Tazewell,

Tennessee, Channel 231A for Channel

240A at Morristown, Tennessee, and

Channel 252A for Channel 290A at

Whitley City, Kentucky. The Report and

Order denied Murray’s counterproposal,

RM–8299, to upgrade Channel 290A at

Colonial Heights, Tennessee by

substituting Channel 240C2, but granted

its initial proposal, RM–8172, to effect

an upgrade to Channel 240C3. With this

action, the proceeding is terminated.

EFFECTIVE DATE: February 3, 1997.

FOR FURTHER INFORMATION CONTACT: J.

Bertron Withers, Jr., Mass Media

Bureau, (202) 418–2180.

SUPPLEMENTARY INFORMATION: The

following channels can be allotted in

compliance with the Commission’s

minimum distance separation

requirements:

Channel 240C2 to Colonial Heights at

Station WLJQ(FM)’s existing transmitter

site, restricted to 16.7 kilometers (10.4

miles) northwest of the community at

coordinates 36–35–35 North Latitude

and West Longitude 82–37–16, and, to

accommodate that allotment, Station

WAEY(FM), Channel 240A, Princeton,

West Virginia, can be relocated to a new

transmitter site at coordinates North

Latitude 37–25–00 and West Longitude

81–02–00 in compliance with the

minimum distance separation

requirements; Channel 290A to

Tazewell at Station WCTU(FM)’s

existing site at coordinates 36–27–32

and West Longitude 83–35–07; Channel