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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554 In re Petition of ) ) WXTV LICENSE PARTNERSHIP, G.P. ) ) CSR 5327-M Petition for Special Relief Concerning ) Carriage of Television Station ) WXTV (TV), Paterson, New Jersey on ) Channel 41 on certain Cablevision cable ) systems in the New York ADI ) STAY ORDER Adopted: May 27, 1999 Released: May 28, 1999 By the Deputy Chief, Cable Services Bureau: INTRODUCTION 1. CSC Holdings, Inc. ("Cablevision") has requested that a stay pending reconsideration of certain limited aspects of an April 16, 1999 Memorandum Opinion and Order ("Order") granting in part and denying in part a petition for special relief filed by WXTV License Partnership, G.P. ("WXTV"), licensee of station WXTV (TV), Paterson, New Jersey. The referenced Order, in relevant part, essentially requires Cablevision to reposition WXTV to its over-the-air channel, channel 41, on 21 cable systems within 45 days of release of the Order, or as soon as practically possible. WXTV filed a response to Cablevision's Petition. 2. Cablevision states that it has initiated efforts to carry WXTV on channel 41 in 17 of those 21 cable systems, but has encountered substantial technical difficulties in four cable systems that render literal compliance with the Order impracticable within the time frame contemplated by the Order. These systems are known as the Allamuchy, Yonkers, Bayonne, and Rockland operations. According to the operator, the purpose of the instant Petition is to avoid the irreparable harm that it would suffer as a result of being forced to comply with the literal terms of the Bureau's Order with regard to those four cable systems. 3. Cablevision argues that it has satisfied the relevant criteria for a stay to be issued. Cablevision argues that it is likely to succeed on the merits; it will suffer irreparable harm absent the grant of a stay; interested parties will not be harmed if the stay is granted; and the public interest favors the requested relief. ARGUMENTS 4. Cablevision argues that there is a substantial probability that it will succeed on the merits of its Petition for Reconsideration with respect to the four noted cable systems. The operator asserts that all of the cable systems other than Rockland, in whole or in part, are 300 MHz systems, and thus cannot accommodate WXTV, which broadcasts on real frequency 325.25 MHz. Cablevision states that, because of this, it is impracticable to comply with the literal terms of the Order requiring Cablevision to reposition WXTV to channel 41. On the fourth system, the Rockland system, Cablevision asserts that the costs associated with repositioning WXTV to channel 41 in Rockland were erroneously grouped with those costs associated with the Ramapo system, and that for financial and technical reasons, repositioning WXTV to channel 41 in the Rockland system will require the six months the Commission allowed Cablevision for similarly situated systems. The operator believes that it will succeed in having this system re-categorized. 5. Cablevision states that is impracticable for it to comply with the literal terms of the Order in three of the four systems at issue, and it will suffer irreparable harm if forced to comply with the terms of the Order relating to the fourth system in Rockland. In order to meet the deadlines imposed by the Order, Cablevision asserts that it would have to divert a large percentage of its limited staff resources to the project, and its engineers would have to work around the clock. Further, Cablevision would suddenly incur, and be responsible for, a tremendous unanticipated and unbudgeted expense of several hundred thousand dollars in a very short time period, which would necessarily force the company to divert funds from other planned expenditures, such as system upgrades and the development of local programming. Cablevision states that the Commission has recognized that a company may be irreparably harmed where compliance with the Order pending reconsideration would cause a "severe hardship in the day-to-day administration" of the company. Here, as in those instances, Cablevision claims it will be irreparably harmed if forced to comply with the literal terms of the Order with respect to the systems at issue. 6. Cablevision argues that granting the requested stay will not adversely affect any interested party. According to the operator, WXTV will be repositioned to channel 41 in 17 cable systems by May 31st; in two other cable systems Yonkers and Bayonne 68% of the systems' subscribers will receive WXTV on channel 41 by May 31, and the rest of the systems' subscribers will receive WXTV on channel 41 as Cablevision continues the process of migrating its subscribers in those systems to the new cable wire. Cablevision adds that in the Rockland system, WXTV will be repositioned to channel 41 within six months, a time frame judged reasonable by the Commission for similarly situated systems. Cablevision states that, while on-channel placement will be deferred in the Allamuchy system, that system serves only a small number of subscribers, and WXTV is carried in Allamuchy on channel 10, a very favorable channel position. Cablevision states that WXTV initially asked for carriage on channels 2-13, instead of channel 41. Because little harm will befall other interested parties, and Cablevision will suffer significant unanticipated economic loss in the absence of a stay, the operator states that the balance of hardships clearly warrants the granting of a stay. 7. Cablevision asserts that the public interest will be fully protected by granting the requested relief. In addition to the aforementioned fact that WXTV would not be harmed by a partial stay, Cablevision contends that such a stay would also avoid subscriber confusion that would result if its engineers could not reach all subscribers by the deadline currently imposed by the Order, as well as reduce unnecessary administrative and personnel burdens and costs. 8. In its limited opposition, WXTV states that it does not generally oppose a stay or clarification of the Order which does not impinge on the Order's intent to require carriage of WXTV on channel 41 of those systems where such carriage is possible. Specifically, the station does not oppose a temporary stay with regard to the Allamuchy, Yonkers, and Bayonne cable systems; however, the station believes that the operator appears to request an indefinite stay, even if these systems are eventually upgraded to 41 or more channels. WXTV therefore requests that the Bureau include in its stay decision a statement that the station must be placed on channel 41 if the systems are upgraded to include 41 or more channels. With regard to the Rockland system, WXTV asserts that Cablevision has not provided sufficient information about the respective costs of bringing these systems into compliance, and the Bureau therefore lacks the information necessary to act on the stay request. WXTV contends that the operator should submit information demonstrating such costs, to justify extending the compliance period, before a stay could be issued. DISCUSSION 9. Cablevision's request for a stay pending reconsideration is granted with respect to its systems in Allamuchy, Yonkers, and Bayonne. The operator has successfully demonstrated, based on unique technical circumstances, that it meets the necessary legal requirements for a stay to be issued. The brief delay in carriage of WXTV on channel 41 in the three systems involved here will not significantly harm the station. A stay will, however, serve to protect cable subscribers from unwarranted channel line-up disruptions and other inconveniences associated with immediate compliance with the Bureau's April 16th Memorandum Opinion and Order. 10. With regard to Cablevision's Rockland system, we grant a stay with conditions. In this instance, Cablevision will be required to submit further information to justify extending the compliance period. The operator shall submit specific data demonstrating serious costs of complying with the station's channel positioning request in Rockland within 15 days from the release of this order. WXTV may file a response within 7 days thereafter. Upon completion of the pleading cycle, the Bureau will decide whether it should issue a permanent stay pending reconsideration. ORDERING CLAUSES 11. Accordingly, IT IS ORDERED, pursuant to Sections 1.41, 1.43 and 1.102(b)(2) of the Commission's rules, that the Petition for Partial Stay Pending Reconsideration filed May 17, 1999 by CSC Holdings, Inc. IS GRANTED with respect to its Allamuchy, Yonkers, and Bayonne cable systems. 12. IT IS FURTHER ORDERED that a conditional stay is granted with respect to Cablevision's Rockland system per the instructions contained in paragraph 10, above. 13. This action is taken pursuant to authority delegated by Section 0.321(a)(1) of the Commission's Rules. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief Cable Services Bureau