consent/must-carry election cycle but before the period had even commenced. More importantly. however, WOOD-TV had already made a consistent carriage election and agreement with respect to Adelphia on November 15, 1993 for retransmission consent that extends into the 1997-1999 period. WOOD-TV's election of retransmission consent precludes the station from claiming must-carry status during the 1997-1999 period. Given these circumstances, including the prior agreement, the early discovery of the error, and the lack of dispute as to the intentions of the parties, we do not agree that a default must-carry election should be applied to Cablevision. Further, although Cablevision notes the failure of WOOD-TV to properly comply with the applicable public file requirements, we do not believe that should, by itself, be determinative of the election issue. Accordingly, we find that WOOD-TV has not made inconsistent carriage elections in Comstock Township. 13. In view of the foregoing, we grant of Cablevision's petition for partial reconsideration only to the extent that we find that WOOD-TV made inconsistent carriage elections in Kalamazoo in 1993 for the 1994-1996 period and find that WOOD-TV acquired must-carry status in Kalamazoo for that period. 14. ORDERING CLAUSES Accordingly, IT IS ORDERED, That the "Petition for Partial Reconsideration" filed November 25, 1996 by Cablevision Systems Corporation IS GRANTED to the extent indicated at paragraph 10, supra, and in all other respects IS DENIED. 15. IT IS FURTHER ORDERED, That the "Emergency Petition for Stay Pending Reconsideration" filed November 26, 1996 by Cablevision Systems Corporation IS DISMISSED as moot. FEDERAL COMMUNICATIONS COMMISSION William H. Johnson Deputy Chief, Cable Services Bureau 1. Executive Summary. The Commission's Rules permit certain Interactive Video and Data Service (IVDS) licensees that received their licenses from the July 28-29, 1994, auction to pay their winning bids under an installment plan. By this Order, the Commission denies a request for stay of the commencement of the IVDS "installment payment program." Petitioners requesting the stay have failed to meet the four-factor test for granting such requests, required under Wisconsin Gas Co. v. FERC, 758 F.2d 669, 673-74 (D.C. Cir. 1985) (per curiam). 2. Background. On December 6, 1995, we released an Order denying various requests by IVDS auction winners, including requests to delay payments under the installment payment program.' These auction winners, now licensees, were awarded their licenses as a result of the IVDS auction held July 28 and 29, 1994. On January 11, 1996, AG Partners, Friends of IVDS, IVDCO LLC, IVDS/RLV Partnership, Infopower International, Nanowave Technologies, New England Mobile Communications, Inc., Tele-Link Communications, WCTV Partners, Washington Communications, Wayne Partners, and Zarg Corporation (collectively, Petitioners) filed a joint Petition for Reconsideration and Request for Stay seeking reconsideration of the Commission's denial of these requests and a stay of the Order.? 1 Order, FCC 95-479 (released Dec. 6, 1995). Specific items denied by this Order included requests that the Commission: (1) transfer "bidding credits" where the holder has defaulted; (2) revise the installment payment program to permit payment over seven years, rather than five; and (3) restrict the re-auction of licenses lost by default to only certain participants. For a general discussion of the IVDS and its service rules, see Report and Order in GEN Docket No. 91-2, 7 FCC Rcd 1630 (1992). 2 Petition for Reconsideration and Request for Stay (filed Jan. 11, 1996) (Petition); see also Supplement (filed Jan. 16, 1996). The Petition and Supplement were timely filed, With respect to the stay, Petitioners simply state that they "also request that the Commission STAY, for good cause demonstrated above, the effective date of its decision, and further STAY the installment payment schedule, rescheduled to begin again on January 5, 1996, pending the outcome of reconsideration of its Order."3 No oppositions were filed to Petitioners' requests. For the reasons set forth below, however, we deny the stay request.* 3. Discussion. As a result of the December 6 Order, payments under the IVDS installment payment program were due by January 5, 1996. As noted, Petitioners request that, pending action on their Petition for Reconsideration, we stay the effective date of the December 6 Order and the commencement of the installment payment program. Petitioners, however, have failed to file their stay request as a separate pleading, as required under Section 1.44(e) of the Commission's Rules, 47 C.F.R. § 1.44(e). Their request is therefore procedurally defective, and subject to dismissal. 4. In addition to this significant procedural flaw, Petitioners' stay request provides no specific reasons justifying grant of a stay, and therefore fails to meet the four-factor test required by Wisconsin Gas. Under that test, petitioners must demonstrate: (1) that they are likely to prevail on the merits; (2) that they will suffer irreparable harm if their stay request is not granted; (3) that other interested parties will not be harmed if the stay is granted; and (4) that the public interest favors grant of the stay. Because Petitioners fail to demonstrate that they have met this test, we must deny their request. Indeed, Petitioners do not even discuss any of the four required elements of the test. For instance, Petitioners fail to pursuant to a special, Commission-wide extension of the due dates for Commission filings. See Order at ¶ 16 n.23, ¶ 19; see also Order, DA 95-2029 (Wireless Telecom. Bureau, released Sept. 22, 1995); Public Notice, "Procedures for the Filing of Documents that were Due During the Government Shutdown or During the Weather Emergency," DA 96-2 (released Jan. 11, 1996). Petitioners have also requested that, at a re-auction triggered by default, the prohibition on holding two licenses in a service area be relaxed so as to permit non-defaulting licensees the opportunity to vie for the other license (A or B) in order to "switch" licenses. See 47 C.F.R. § 95.813(b)(1) (forbidding, inter alia, an entity holding both licenses in a service area). 3 Petition at 8 (emphasis in original). "We will address the reconsideration issues raised in Petitioners' Petition at a later time. 4 "Any request to stay the effectiveness of any decision or order of the Commission shall be filed as a separate pleading. Any such request which is not filed as a separate pleading will not be considered by the Commission." 47 C.F.R. § 1.44(e). 6 See para. 1, supra; see also Washington Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 842-43 (D.C. Cir. 1977); Virginia Petroleum Jobbers Ass'n v. Federal Power Comm'n, 259 F.2d 921, 925 (D.C. Cir. 1958). demonstrate that, absent the stay, they will suffer an irreparable injury. At best, Petitioners have claimed that the current requirement to pay installments over a five-year period, rather than the requested seven-year period, would threaten the economic viability of many licensee businesses. Petitioners, however, have provided no evidence that adherence to the existing installment plan over the short-term until their petition for reconsideration is resolved -would irreparably injure them.' 7 5. Accordingly, IT IS ORDERED that Petitioners' request for stay IS DENIED. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary Petition at 5-7. In fact, the short-term financial burden under the current installment plan appears to fall short of anything that would present a risk of irreparable injury. To date, petitioners have made only upfront payments and downpayments, and these total 20 percent of their winning bid amounts. Under the subsequent IVDS installment payment program, licensees pay only interest on their debt for the first two years of the license. This two-year amount totals approximately 10-11 percent of the winning bid amount. This percentage, then, is the approximate upper limit of the amount of money at issue, given that petitioners' two-year period ends on either January 18 or February 28, 1997, and the underlying reconsideration should be concluded by that time. |