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

In re:            )
                  )
KSWB, Inc.        )     CSR-5106-N
                  )
Channel 51 of San Diego, Inc. )      CSR-5189-N
                  )
Petition for Stay ) 


MEMORANDUM OPINION AND ORDER

   Adopted:  October 29, 1998                      Released:  October 30, 1998

By the Deputy Chief, Cable Services Bureau:

                               INTRODUCTION

  1.    On September 18, 1998, KCOP Television, Inc. ("KCOP"), licensee of television station
KCOP-TV, Los Angeles, California, filed an application seeking Commission review pursuant to 47
C.F.R.  1.115 of the Cable Service Bureau's Memorandum Opinion and Order, DA 98-1605, released
August 19, 1998 in this proceeding ("Bureau Order").  KCOP also filed a petition for a stay pending
Commission review of the Bureau Order.  KSWB Inc.  ("KSWB"), licensee of television station KSWB,
San Diego, California, filed an opposition to the petition for stay on September 25, 1998.  For the reasons
discussed below, we deny KCOP's petition for stay.

  2.    Under the Commission's cable television syndicated programming exclusivity rules, a
cable system may not import duplicating programming which has been purchased by a local station on
an exclusive basis.  The Commission's rules in general provide stations such protection within a station's
35-mile geographic zone.  However, a local station may not exercise this right if an otherwise distant
station is considered "significantly viewed" within the community served by the cable system.  The
Bureau Order found that KCOP is no longer significantly viewed in certain communities served by three
cable operators in San Diego County, California.  As a result, KCOP loses its exemption from the
application of the Commission's syndicated program exclusivity rules, and KSWB and other San Diego
television stations in those communities that have purchased exclusive rights to distribute certain
syndicated programming may request that cable systems serving those communities blackout such
programming carried by KCOP.  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.

  3.     A petition for stay of a Commission action is analyzed under a four-part test which
requires the stay proponent 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.  A showing of irreparable harm
is an essential factor in any request for a stay.  The key word in an analysis of irreparable harm is
"irreparable."  As one court held, "economic loss does not, in and of itself, constitute irreparable harm." 
Also, because competitive harm is merely a type of economic loss, "revenues and customers lost to
competition which can be regained through competition are not irreparable."

  4.     KCOP addressed the four-part test for granting stays, contending first that a stay would
serve the public interest because it would avoid disruption of long-standing cable viewing patterns in San
Diego.  KCOP claims irreparable injury on the grounds that cable system viewers in the subject
communities face the prospect of having 22% or more of KCOP's weekly schedule blacked out, disrupting
long term service to them and thereby threatening permanent injury to  KCOP's ability to serve that
audience.  On October 21, 1998, KCOP filed a Supplement to Petition for Stay to present for the record
a notification, dated September 9, 1998, it received from Station KSWB-TV asserting syndicated
exclusivity rights to certain programming on certain dates, pursuant to 47 C.F.R.  76.155(b)(2).  KCOP
argues that a stay would not injure other parties because it would maintain the status quo by permitting
continued carriage of programming now threatened with blackout.  KCOP claims that the Cable Services
Bureau erred when it addressed the question of whether surveys of non-cable viewers should be accepted
in determining the significantly viewed status of a television station in communities where cable
penetration has reached an 82% level.   KCOP argues that the matter of whether surveys of non-cable
viewers should be accepted where cable penetration has reached such a high level presents a novel
question and that the Cable Service Bureau exceeded its delegated authority when it attempted to resolve
that novel question.  KCOP also claims the Bureau erred in failing to give proper weight to the resulting
disruption to cable viewing, and erred in requiring KCOP to demonstrate that the audience survey failed
to comply with established Commission requirements, instead of imposing the burden showing compliance
on the survey proponent.  Because of these errors, KCOP argues that is has a substantial likelihood of
success on the merits.

  5.     KSWB contends in opposition that KCOP failed to establish irreparable harm.  KSWB
argues that such failure precludes grant of the stay and obviates any need to consider the other factors of
the four part test for issuing a stay.  KSWB asserts that the San Diego market accounted for only 6% of
KCOP's total viewing in 1997.  KSWB contends that KCOP registered only a 2% audience share in San
Diego County in 1997, and that a loss by KCOP of all of its 2% share of San Diego County viewers
would be only a small loss and would not represent the kind of irreparable harm required to justify a stay. 
On 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.

  6.     We find that the potential harm cited by KCOP do not constitute irreparable harm.  While
the possible loss of an undefined number of San Diego County viewers, a matter not established on the
record with any degree of certainty, may cause some loss of advertising revenue to KCOP, monetary
damages are insufficient to establish irreparable harm.  We find no evidence --- nor does KCOP allege
--- that the exercise of syndicated program exclusivity rights with respect to KCOP programming in the
communities at issue here threatens permanent injury to KCOP.  Having determined that KCOP has failed
to demonstrate irreparable harm in the absence of a stay, we need not examine the other factors to be
considered in determining whether to grant the petition for stay.  Nonetheless, we find that KCOP has not
established a likelihood of success on the merits nor a public interest concern that warrants the issuance
of a stay.  A significantly viewed signal for the purposes under consideration here is one that is "[v]iewed
in other than cable television households...."  Moreover, we have consistently held that by their very
nature, enforcement of the syndicated program exclusivity rules often causes some disruption of
established viewing habits.  Accordingly, such disruption is not, in itself, sufficient grounds upon which
to grant a stay.

  7.     We conclude that KCOP has failed to meet the standards for a stay set forth in Virginia
Jobbers and Washington Transit.  Accordingly, we deny KCOP's request for a stay of our August 19
Order in this proceeding.

                             ORDERING CLAUSES

  8.     Accordingly, IT IS ORDERED that the petition of KCOP Television, Inc. for a stay of
the Memorandum Opinion and Order, DA 98-1605, released August 19, 1998 in this proceeding IS
DENIED.

  9.     IT IS FURTHER ORDERED that the Motion for Leave to File Supplement to Petition
for Stay filed by KCOP Television, Inc. IS GRANTED, and the Motion to Strike filed by Channel 51
of San Diego, Inc. IS DENIED.

  10.    This action is taken pursuant to authority delegated by Section 0.321 of the Commission's
rules..

  FEDERAL COMMUNICATIONS COMMISSION


  William H. Johnson
  Deputy Chief, Cable Services Bureau