WPC  2BJ Courier3|jTimes New Roman Bold P6G;PTimes New RomanRoom 907HPLAS5SI.PRSx  @\%CX@2'6 ZFK<3|jHP LaserJet 5Si Room 907HPLAS5SI.PRSX\  P6G;\%CP"i~'^09CSS999S]+9+/SSSSSSSSSS//]]]Ixnnxg]xx9?xgxx]xn]gxxxxg9/9MS9ISISI9SS//S/SSSS9?/SSxSSIP!PZ9+ZM999+999999S9S/xIxIxIxIxIlnIgIgIgIgI9/9/9/9/xSxSxSxSxSxSxSxSxSxSxIxSxRxSxSxS]SxIxIxInInInZnIxigIgIgIgIxSxSxSxZxSxZxS9/9S999Su]ZZxSg/gCg9g9g/xSbxSxSxSxSxn9n9n9]?]?]?]ZgFg/gMxSxSxSxSxSxSxxZgIgIgIxSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""2"2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""%7777777777>>>0eOIIOD>OO%*ODaOO>OI>DOOgOOD%%37%07070%777V7777%*77O77055;%;3%%%%%%%%%7%7O0O0O0O0O0aHI0D0D0D0D0%%%%O7O7O7O7O7O7O7O7O7O7O0O7O6O7O7O7>7O0O0O0I0I0I;I0OED0D0D0D0O7O7O7O;O7O;O7%%7%%%7M>;;O7DD,D%D%DO7AO7O7O7O7aOI%I%I%>*>*>*>;D.DD3O7O7O7O7O7O7gOO;D0D0D0O7D%O7>*D%O7E77%%WMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN(BB(37%07777j7#TT7!#TT7T!%%007n&&Bn77lBTn(nBB(AZZ>>n%07\n!"IIIITTenn7TnB@;7>lBBn72kK.KyK\"i~'^09FSS999Sq+9+/SSSSSSSSSS99qqqSggnxggxx9In]nxgxgS]xgg]]?/?FS9SSISI/SS//I/xSSSS??/SInII?C/CZ9+ZF999+999999S9S/gSgSgSgSgSnnIgIgIgIgI9/9/9/9/nSxSxSxSxSxSxSxSxS]IgSxSxSxS]IxSgSgSgSgSnInInZnIxdgIgIgIgIxSxSxSxZxSxZxS9/9S999SSZZnI]/]<]9]5]/nSanSnSxSxSng?g?g?S?S?S?ZZ]<]/]FxSxSxSxSxSxSn]Z]?]?]?xS]9nSS?]9]Sd+SS8%8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuddddddddddddddddddddddddddddddddddddddddNI\\>>>\g0>03\\\\\\\\\\33gggQyyrg>Frgygrr>3>T\>Q\Q\Q>\\33\3\\\\>F3\\\\QX%Xc>0cT>>>0>>>>>>\>\3QQQQQwyQrQrQrQrQ>3>3>3>3\\\\\\\\\\Q\Z\\\g\QQQyQyQycyQtrQrQrQrQ\\\c\c\>3>\>>>\gcc\r3rIr>r>r3\l\\\\y>y>y>gFgFgFgcrMr3rT\\\\\\crQrQrQ\r>\gFr>\t0\\=!=WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNBnnBT\>Q\\\\\3;\7;\7>>QQ\??n\\nBnnBmgg>Q\7"yyyy\njc\gnn\"i~'^5>g\\>>>\g0>03\\\\\\\\\\>>ggg\yyrF\yrgyy>3>j\>\gQgQ>\g3>g3g\ggQF>g\\\QI(I_>0_j>>>0>>>>>>\>g3\\\\\QyQyQyQyQD3D3D3D3g\\\\gggg\\g\\\\pg\\\QQ_QyQyQyQyQ\\\_\gjF3FgF>Fgg__gy3ySy>yIy3ggg\\QQQgFgFgFg_y^y>yjgggggg_yQyQyQgy>ggFy>\0\\=2=WxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNBnnBa\>\\\\\\7>\7>\7>>\\\??n\\nBnnBsgg>\\7"yyyy\nlc\gnn\y.X80,ɒX\  P6G;P7jC:,ynXj\  P6G;XP7nC:,M\\>>>\}0>03\\\\\\\\\\>>}}}\rryrr>Qygyrr\grrggF3FM\>\\Q\Q3\\33Q3\\\\FF3\QyQQFI3Ic>0cM>>>0>>>>>>\>\3r\r\r\r\r\yyQrQrQrQrQ>3>3>3>3y\\\\\\\\\gQr\\\\gQ\r\r\r\r\yQyQycyQnrQrQrQrQ\\\c\c\>3>\>>>\\ccyQg3gBg>g;g3y\jy\y\\\yrFrFrF\F\F\FccgBg3gM\\\\\\ygcgFgFgF\g>y\\Fg>g\n0\\=(=WddddddddddddddddddddddddddddddddddddddddNBnnB_\F\\\\\\3;\7;\7>>gg\??n\\nBnnBb\\>g\7"yyyy\njc\}nn\ S- X   ) X-  #&a\  P6G;u&P#Federal Communications Commission`}(#DA 982217 ă  yxdddy )#&a\  P6G;u&P#P3 Before the Federal Communications Commission  S-" Washington, D.C. 20554 ă  S`- ]%n In re:x` `  hh@h) x` `  hh@h)  S-KSWB, Inc. ` `  hh@h)ppCSR5106N x` `  hh@h)  S-Channel 51 of San Diego, Inc.hh@h)ppCSR5189N x` `  hh@h)  Sp-Petition for Stay hh@h)  ]%n   ]%n   S -  MEMORANDUM OPINION AND ORDER TP  S -X` hp x (#%'0*,.8135@8:station is considered "significantly viewed" within the community served by the cable system.;HH {O,"- xԍSee 47 C.F.R.  76.156 (1997). A list of significantly viewed stations entitled to such exemption is published  {O"- xin Appendix A to the Commission's Memorandum Opinion and Order on Reconsideration (FCC 72530) in Cable  {O#- x<Report and Order (Docket 18397 et al.), 36 F.C.C. 2nd 143 (1972). In order for an independent station such as  xKCOP to be considered significantly viewed in a particular geographic area, it must demonstrate at least a 2% share  xof noncable viewing hours (total week hours), and at least 5% net weekly circulation. 47 C.F.R.  76.5(i). In this  x-context, "share of viewing hours" means the total hours that non-cable television households viewed the subject  xstation during the week (expressed as a percentage of the total hours these households viewed all stations during the  xperiod), and "net weekly circulation" means the number of non-cable television households that viewed the station  xfor five minutes or more during the entire week (expressed as a percentage of the total non-cable television"r(,))(" households in the survey area).; The"X,))II"  x=Bureau Order found that KCOP is no longer significantly viewed in certain communities served by three  xlcable operators in San Diego County, California. As a result, KCOP loses its exemption from the  xapplication of the Commission's syndicated program exclusivity rules, and KSWB and other San Diego  x0television stations in those communities that have purchased exclusive rights to distribute certain  xsyndicated programming may request that cable systems serving those communities blackout such  S8- xprogramming carried by KCOP.q8XuJ {O0-ԍ#X\  P6G;ɒP#See 47 C.F.R. 76.151 (1997).q By its petition for stay, KCOP seeks to maintain the status quo and avoid blacking out such programming, pending Commission review of the Bureau Order.  S- ` x3.` ` A petition for stay of a Commission action is analyzed under a four-part test which  xrequires the stay proponent to demonstrate: (1) that it is likely to prevail on the merits; (2) that it will  xsuffer irreparable harm if a stay is not granted; (3) that other interested parties will not be harmed if the  SH - xstay is granted; and (4) that the public interest favors the grant of a stay.&H uJ {O- xԍSee Implementation of Local Competition Provisions of the Telecom Act of 1996, 11 FCC Rcd 11754 (1996).  {O- xSee also Wisconsin Gas Co. v. FERC, 758 F.2d 669, 673-74 (D.C. Cir. 1985); Washington Metropolitan Area Transit  {Of- xhAuthority v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977); Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958). A showing of irreparable harm  S - xis an essential factor in any request for a stay. uJ {O-ԍReynolds Metals Co. v. FERC, 777 F.2d 760, 763 (D.C. Cir. 1985); Wisconsin Gas, 758 F.2d at 674. The key word in an analysis of irreparable harm is  S - xy"irreparable." j uJ {O*-ԍWisconsin Gas, 758 F.2d at 674 (quoting Virginia Petroleum Jobbers Ass'n., 259 F.2d at 925). As one court held, "economic loss does not, in and of itself, constitute irreparable harm."M $ uJ {O-ԍWisconsin Gas, 758 F.2d at 674.M  xAlso, because competitive harm is merely a type of economic loss, "revenues and customers lost to  S -competition which can be regained through competition are not irreparable." \ uJ {O- xԍCentral & Southern Motor Freight Tariff Ass'n v. United States, 757 F.2d 301, 309 (D.C. Cir.), cert. denied,  {O- x474 U.S. 1019 (1985). See also Washington Metropolitan Area Transit Authority v. Holiday Tours, Inc., 559 F.2d at 843 n.3 ("[t]he mere existence of competition is not irreparable harm").  SX- ` x4.` ` KCOP addressed the fourpart test for granting stays, contending first that a stay would  xjserve the public interest because it would avoid disruption of longstanding cable viewing patterns in San  xDiego. KCOP claims irreparable injury on the grounds that cable system viewers in the subject  xcommunities face the prospect of having 22% or more of KCOP's weekly schedule blacked out, disrupting  xlong term service to them and thereby threatening permanent injury to KCOP's ability to serve that  xLaudience. On October 21, 1998, KCOP filed a Supplement to Petition for Stay to present for the record  x!a notification, dated September 9, 1998, it received from Station KSWBTV asserting syndicated  S@- xexclusivity rights to certain programming on certain dates, pursuant to 47 C.F.R.  76.155(b)(2).*   @uJ yO$- xԍKCOP's supplement was accompanied by a Motion for Leave to File Supplement to Petition for Stay. KCOP  xwasserts that the Section 76.155 notification was not available when its petition for stay was filed and that good cause  xxexists for filing the supplement. KCOP argues that the new information demonstrates that a stay is necessary to  xavoid on again/off again disruption of viewing that Commission policy seeks to avoid. KSWB filed an opposition"' ,>(>(?'"  xZto KCOP's Motion for Leave to File Supplement to Petition for Stay, arguing that the information submitted by  xKKCOP fails to establish that KCOP will suffer irreparable harm. KSWB also submitted a Notice of Supplemental  yO - xAuthority.  Channel 51 of San Diego, Inc., licensee of San Diego television station KUSI, filed a motion to strike and an opposition to KCOP's motion for leave to file.* KCOP"@ ,>(>(IIc"  xargues that a stay would not injure other parties because it would maintain the status quo by permitting  x.continued carriage of programming now threatened with blackout. KCOP claims that the Cable Services  xBureau erred when it addressed the question of whether surveys of noncable viewers should be accepted  xin determining the significantly viewed status of a television station in communities where cable  S`- xpenetration has reached an 82% level. `uJ yO - xԍKCOP argues that an audience survey which relies on noncable viewers only cannot reliably establish the significantly viewed status of a television station in communities with an 82% cable penetration level. KCOP argues that the matter of whether surveys of noncable  xlviewers should be accepted where cable penetration has reached such a high level presents a novel  x[question and that the Cable Service Bureau exceeded its delegated authority when it attempted to resolve  S- xythat novel question.J uJ {O-ԍSee 47 C.F.R.  0.321(a).J KCOP also claims the Bureau erred in failing to give proper weight to the resulting  xdisruption to cable viewing, and erred in requiring KCOP to demonstrate that the audience survey failed  xto comply with established Commission requirements, instead of imposing the burden showing compliance  xon the survey proponent. Because of these errors, KCOP argues that is has a substantial likelihood of success on the merits.  S - ` ox5.` ` KSWB contends in opposition that KCOP failed to establish irreparable harm. KSWB  x[argues that such failure precludes grant of the stay and obviates any need to consider the other factors of  x.the four part test for issuing a stay. KSWB asserts that the San Diego market accounted for only 6% of  xKCOP's total viewing in 1997. KSWB contends that KCOP registered only a 2% audience share in San  x Diego County in 1997, and that a loss by KCOP of all of its 2% share of San Diego County viewers  xwould be only a small loss and would not represent the kind of irreparable harm required to justify a stay.  xOn the other hand, KSWB claims the injury stemming from its inability to exercise syndicated program exclusivity rights available to the vast majority of stations in the country.  S- ` Px6.` ` We find that the potential harm cited by KCOP do not constitute irreparable harm. While  xthe possible loss of an undefined number of San Diego County viewers, a matter not established on the  xMrecord with any degree of certainty, may cause some loss of advertising revenue to KCOP, monetary  S- xdamages are insufficient to establish irreparable harm. uJ {OR-ԍSee Washington Transit, 559 F.2d at 843, n. 2, and Wisconsin Gas, 758 F.2d 669. We find no evidence --- nor does KCOP allege  x--- that the exercise of syndicated program exclusivity rights with respect to KCOP programming in the  xcommunities at issue here threatens permanent injury to KCOP. Having determined that KCOPhas failed  x>to demonstrate irreparable harm in the absence of a stay, we need not examine the other factors to be  xconsidered in determining whether to grant the petition for stay. Nonetheless, we find that KCOP has not  xestablished a likelihood of success on the merits nor a public interest concern that warrants the issuance  xof a stay. A significantly viewed signal for the purposes under consideration here is one that is "[v]iewed  S- xin other than cable television households...."H, uJ {O&-ԍSee 47 C.F.R.  76.5(l)H Moreover, we have consistently held that by their very" ,>(>(IIM"  xnature, enforcement of the syndicated program exclusivity rules often causes some disruption of  x.established viewing habits. Accordingly, such disruption is not, in itself, sufficient grounds upon which  S-to grant a stay.]uJ {O-ԍSee Metro Cable Co., 64 FCC 2d 605, 607 (1977).]  S`- ` x7.` ` We conclude that KCOP has failed to meet the standards for a stay set forth in Virginia  S:- xzJobbers and Washington Transit. Accordingly, we deny KCOP's request for a stay of our August 19 Order in this proceeding.  S-1 ORDERING CLAUSES  St- ` }x8.` ` Accordingly, IT IS ORDERED that the petition of KCOP Television, Inc. for a stay of  SL - xthe Memorandum Opinion and Order, DA 981605, released August 19, 1998 in this proceeding IS  S$ -DENIED .  S - ` x9.` ` IT IS FURTHER ORDERED that the Motion for Leave to File Supplement to Petition  S - xLfor Stay filed by KCOP Television, Inc. IS GRANTED , and the Motion to Strike filed by Channel 51  S -of San Diego, Inc. IS DENIED .  S4- ` _x10.` ` This action is taken pursuant to authority delegated by Section 0.321 of the Commission's  S -rules.= ZuJ yO-ԍ47 C.F.R.  0.321.=. x` `  hhFEDERAL COMMUNICATIONS COMMISSION  SD-x` `  hhWilliam H. Johnson x` `  hhDeputy Chief, Cable Services Bureau