Federal Communications Commission
Washington, D.C. 20554
August 12, 2008
DA 08-1891
In Reply Refer to:
1800B3-RDH
Released: August 12, 2008
Stephen Diaz Gavin, Esq.
Janet Fitzpatrick Moran, Esq.
Carly T. Didden, Esq.
Patton Boggs LLP
2550 M Street, N.W.
Washington, DC  20037-1350
In re: WWHK(FM) (Formerly WOTX-FM)
Concord, New Hampshire
Facility Id No. 8683
Capitol Broadcasting Corporation, Inc.
File No. BTCH-20050105ACS
Request for Temporary Waiver 
and/or Stay
Dear Counsel:
We have before us an April 30, 2008, “Request for Temporary Waiver and/or Stay” (“Request”) 
filed on behalf of Nassau Broadcasting I, LLC (“Nassau”).  The Request seeks a temporary waiver of the 
Commission’s attribution rule for in-market Joint Sales Agreements (“JSA”) or, in the alternative, a 
temporary stay of Section 73.3555 Note 2(k)(1) (“Note 2”) until the final disposition of Nassau’s pending 
Application for Review of the Media Bureau’s March 31, 2008, decision dismissing the referenced 
application (the “Application”).1 For the reasons set forth below, we deny the Request for both waiver 
and stay.   
Background.  On January 5, 2005, the parties filed the Application, which sought Commission 
approval for transfer of control of Capitol Broadcasting Corporation (“Capitol”), licensee of Station 
WWHK(FM), Concord, New Hampshire (the “Station”), from Concord Broadcasting, LLC, (“Concord”), 
the 100 percent shareholder of Capitol, to Nassau.  In the Application, Nassau and Concord claimed that, 
after the transaction, Nassau would own four stations in the Manchester, New Hampshire, Metro market 
(“Manchester Metro”).  Included in the Application was a JSA between Nassau and Capitol, executed on 
July 16, 2004, pursuant to which Nassau would sell advertising on WWHK(FM), manage the station’s 
traffic and billing functions, and receive all revenue from the sale of advertising on the station.2 In 
September of 2004, Arbitron announced the creation of the new Concord, New Hampshire, Metro market 
  
1 Letter to Capitol Broadcasting Corporation, Concord Broadcasting, LLC, and Nassau Broadcasting I, LLC, 23 
FCC Rcd 5478 (MB 2008)(“WWHK Order”).
2 See Application, Attachment 6, Joint Sales Agreement, at Section 4.1.
2
(“Concord Metro”).  On January 26, 2005 – before the staff had finished its evaluation of the transfer 
application and before the statutory petition to deny period had run, WWHK(FM) was first reported as 
“home” to the Concord Metro.3 Utilizing the most recent data available in analyzing the application, the 
staff determined that only one of Nassau’s four stations would be in the Manchester Metro, while the 
remaining three would be in the newly created Concord Metro. Because Nassau already owns five 
stations in the 26-station Concord Metro, consummation of the proposed transaction would result in 
Nassau holding seven FM stations and one AM station in the Concord Metro.  This would exceed the six-
station total market limit and four-station FM sub cap limit for the Concord Metro.4 The Bureau Staff 
therefore dismissed the Application on February 3, 2006.5 Nassau and Concord sought reconsideration of 
that decision, arguing that there should be a two-year waiting period before a change in an Arbitron Metro 
would bar a desired station acquisition.  The staff rejected that argument and denied reconsideration in the 
WWHK Order.  Nassau subsequently filed a timely Application for Review of that decision by the full 
Commission.  It also filed the instant Request directed to the Media Bureau.
In its Request, Nassau first asks that the Bureau waive Section 73.3555, Note 2(k)(1) of the 
Commission’s Rules (the “Rules”)6 to enable WWHK(FM) to maintain its in-market JSA for 
WWKH(FM) until the Commission acts on the Application for Review.7 Nassau argues that a waiver is 
warranted because it would allow Nassau to continue to prosecute its Application for Review.  If the 
Bureau fails to grant a waiver of the in-market JSA attribution rule, it continues, “then it will have 
effectively denied the Nassau Petition by concluding WWHK is part of the Concord Arbitron Metro 
Market rather than the Manchester Arbitron Metro Market, the station’s designation when the parties 
entered into the [stock purchase] Agreement and the WWHK(FM) JSA.”8 It contends that it is requesting 
the waiver “solely to allow it to maintain its ability to operate WWHK(FM) under the JSA until the 
Commission decides the Nassau Application for Review on the merits.”9 Nassau asserts that the 
Commission has deferred required divestitures pending the outcome of a rulemaking to determine if 
relaxation of the “one-to-a-market” rule was in the public interest,10 and states that grant of the instant 
waiver request will not frustrate the intent of the Commission’s multiple ownership rules.
  
3 WWHK Order, 23 FCC Rcd at 5480.
4 See 47 C.F.R. § 73.3555(a)(1)(iii).
5 See Broadcast Actions, Public Notice, Report No. 46168 (Feb. 8, 2006)(“Public Notice”).
6 47 C.F.R. §73.3555 Note 2(k)(1) (“Note 2”).
7 Pursuant to Section 73.3555 Note 2(k)(1), a JSA that exceeds 15 percent of the weekly advertising time of a station 
is attributable to a party that owns other stations in the same market.  Nassau has an attributable interest in the 
Station giving it interests which exceed the number of attributable interests allowed to an entity in a market the size 
of the Concord Metro pursuant to Section 73.3555(a)(1)(iii) of the Rules.
8 Request at 5 – 6.
9 Id. at 6. 
10 Request at 6, citing Letter to Capital Cities/ABC, Inc., By Direction Letter, 2 FCC Rcd 2539 (1987).  There, the 
Commission stayed the need for divestiture due to its proposal in a separate proceeding to eliminate the AM/VHF  
cross-ownership rule because of the public interest benefits such cross-ownership could bring.  
3
In the alternative, Nassau requests a stay of the Commission’s rule requiring attribution of in-
market JSAs to enable it to continue its JSA for WWHK(FM).  Nassau considers it likely that it will 
prevail on the merits of its application for review and that both it and Capitol will suffer irreparable harm 
absent grant of a stay.  Without the stay, Nassau contends, Capitol will be forced to operate the station on 
a stand-alone basis in a market it decided to exit when it entered into the stock purchase agreement with 
Nassau.  It also claims that both Capitol and Nassau will suffer financial loss as a result of the termination 
of the JSA.  Nassau will lose the advertising revenue it collects under the JSA, and Capitol “will be forced 
to rush to find alternatives to run the station and to find advertising for WWHK if the JSA is required to 
be unwound.”11 Granting the stay, Nassau continues, will allow both Nassau and Capitol to maintain the 
status quo and the interim arrangements they entered into while the Commission considers their 
Application for Review.  For these same reasons, Nassau believes that a stay is in the public interest.  
Discussion.  Our longstanding case law on waivers provides that deviation from the general rule 
(in this case Section 73.3555 Note 2(k)(1) of the Rules) is justified only where special circumstances exist 
and the public interest will be served.12 Additionally, requests for waiver must demonstrate that the 
underlying purpose of the rule of which waiver is sought would not be served or would be frustrated by 
application to the particular case and that a grant of the request for waiver would be in the public 
interest.13 As discussed below, Nassau has not met these criteria.  
Waiver Request. The Commission has previously determined that, where the brokering entity 
owns or has an attributable interest in one or more stations in the local market and the joint advertising 
sales amount to more than 15 percent of the brokered station’s weekly advertising time, the brokering 
entity should be attributed with an interest in the brokered station.14 The Commission undertook this 
action because of its concerns regarding the impact of in-market JSAs on competition in local radio 
markets.  Specifically, it determined that, where one station owner controls a large percentage of the 
advertising time in a particular market, it has the ability potentially to exercise market power.15 Thus, it 
concluded, JSAs raise concerns regarding the ability of smaller broadcasters to compete and may 
negatively affect the health of the local radio industry generally.16 For this reason, the Commission 
determined, and the Third Circuit Court of Appeals agreed, that in-market JSAs involving more than 15 
percent of the brokered station’s weekly advertising time provided the brokering entity with a level of 
control or influence that would realistically allow holders of such influence to affect core operating 
  
11 Request at 8.
12 See Northeast Cellular Telephone Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990)(citing WAIT Radio v. FCC,
418 F.2d 1153, 1157-59 (D.C. Cir. 1969)(“WAIT Radio”).
13 See WAIT Radio, 418 F.2d at 1157.  
14 See 2002 Biennial Regulatory Review – Review of the Commission’s Broadcast Ownership Rules and Other Rules 
Adopted Pursuant to Section 202 of the Telecommunications Act of 1996, 18 FCC Rcd 13620, 13711-47 (2003) 
(“2002 Biennial Review Order”), aff’d in part and remanded in part, Prometheus Radio Project, et al. v. FCC, 373 
F.3d 372 (2004) (“Prometheus”), stay modified on rehearing, No. 03-3388 (3d Cir. Sep. 3, 2004), cert. denied, 73 
U.S.L.W. 3466 (U.S. June 13, 2005) (Nos. 04-1020, 04-1033, 04-1036, 04-1045, 04-1168, and 04-1177).
15 2002 Biennial Review Order, 18 FCC Rcd at 13744.
16 Id.
4
functions of a station, and give them an incentive to do so.17 It provided all licensees with a two-year 
period to come into compliance. The deadline for terminating non-compliant JSAs was September 3, 
2006.18
Nassau has not demonstrated any reason or special circumstance why it should be permitted to 
prolong an arrangement the Commission has determined is inimical to competition or explained why the 
Commission’s concerns with the competitive of effects of such JSAs would be better served by waiver of 
the rule.  Instead, it simply points to the pendency of its Application for Review and the fact that the 
Arbitron Metro definition changed causing certain stations to be reclassified as in-market stations.  As the 
court found in upholding the Commission’s in-market JSA attribution decision, “station owners have no 
vested right in the continuation of any particular regulatory scheme.”19 Nassau had no legitimate 
expectation that a Concord Arbitron Metro would not be created; on the contrary, it knew at the time the 
Application was filed of the imminent creation of the Concord Arbitron Metro.  Nor has it demonstrated 
any special circumstances that would cause us not to attribute the JSA now that WWHK(FM) is in that 
market.  
Moreover, Nassau’s reference to instances in which the Commission deferred required 
divestitures pending the outcome of a rulemaking to determine if relaxation of the “one-to-a-market” rule 
was in the public interest is inapposite here.  The Commission has already spoken to the issue of JSAs 
and required the termination of all noncompliant JSAs by September 3, 2006.  While a waiver might 
serve Nassau’s private interests, it has made no showing that it would serve the public interest.  We 
believe that the public interest in maintaining a competitive balance in the Concord Metro is best served 
by terminating the JSA so that it will comply with the ownership limit for the Concord market.  
Request for Stay. Nassau’s request to stay the effectiveness of Note 2 is subject to dismissal on 
numerous procedural grounds.  As an initial matter, Section 1.44(e) of the Rules requires that a stay 
request must be filed as a separate pleading.20 Nassau, however, combined is waiver and stay requests in 
a single pleading.  The Request, thus, is subject to dismissal on this basis alone.
Pursuant to Section 1.429(k) of the Rules, “upon good cause shown, the Commission will stay the 
effective date of a rule pending a decision on the petition for reconsideration.”21 Nassau filed its request 
with the Media Bureau.  Even if we were to ignore clear and contrary Commission pronouncements on 
Note 2, the Bureau is without authority to stay any Commission order.  Accordingly, the Bureau cannot 
grant the relief which Nassau seeks.  The purpose of this section is to avoid irreparable harm while the 
Commission considers petitions for reconsiderations challenging newly adopted rules.  However, Note 2 
  
17 Id. at 13745.  See also Prometheus, 373 F.3d at 429.
18 2002 Biennial Review Order, 18 FCC Rcd at 13746 ¶ 325.  See also Media Bureau Announces Requirement to 
File Certain Radio Joint Sales Agreements, Public Notice, 20 FCC Rcd 1, 2 n.8 (MB 2005).  As a result of a partial 
stay of the new rules, all licensees were given more than three years from the adoption of the new rule to terminate 
non-compliant JSAs.
19 Prometheus, 373 F.3d at 430, citing Folden v. United States, 56 Fed. Cl. 43, 61 (2003).
20 47 C.F.R. § 1.44(e) (“Any such request which is not filed as a separate pleading will not be considered by the 
Commission.).
21 47 C.F.R. § 1.429(k).
5
is not in this procedural posture, i.e., there are no pending petitions for reconsideration.  To the contrary, 
the Commission released an order several months prior to the filing of the Request in which it specifically 
declined to reconsider the decision to attribute JSAs and denied numerous petitions challenging various 
aspects of the new JSA rule.22 Accordingly, the stay request also is subject to dismissal on this basis.  
Finally, we note that the stay request concerns a Rule that has been in effect for nearly four years.  In 
similar circumstances, the Commission concluded that a stay would be “impossible” and treated the 
request as one for a waiver of the disputed rule.23
Notwithstanding these many procedural infirmities, we also note that Nassau also has failed to 
demonstrate that a stay is appropriate.  In evaluating a request for stay, we must ask the following: 1) has 
the petitioner made a strong showing that it is likely to prevail on the merits of its appeal; 2) has the 
petitioner shown that without such relief it will be irreparably injured; 3) would the issuance of a stay 
substantially harm other parties interested in the proceedings; and 4) where is the public interest.24  
Nassau has failed to demonstrate a likelihood it will prevail on the merits, that absent a stay it will suffer 
irreparable harm, and that the public interest dictates a stay should be granted.
With regard to the merits, as noted above, the Commission recently and explicitly declined to 
reconsider its decision in the 2002 Biennial Review Order to attribute in-market JSAs.25 It also 
specifically declined to reconsider its “grandfathering and transition” issues such as the two-year period 
for terminating non-compliant JSAs.26  
Moreover, as the staff clearly explained in the WWHK Order, the Commission generally requires 
applicants to provide the most current relevant information available and relies on that information.  
However, the Commission created an exception to this policy in the 2002 Biennial Review Order in one 
specific circumstance: a party may not receive the benefit of a change in Arbitron Metro boundaries 
unless that change has been in place for at least two years.  This exception safeguards against companies 
successfully petitioning Arbitron to change Metro boundaries and manipulating data to circumvent the 
local radio ownership rule.27 As pointed out in the WWHK Order, there is no reason to have a similar 
waiting period in cases such as the present one, because we do not believe an applicant would manipulate 
Arbitron data in a manner adverse to its interests.  Nassau has not demonstrated to the staff why the two-
year waiting period should apply in its case.  To the contrary, the exception appears inapplicable on its 
face to the present circumstances. 
  
22 See 2006 Quadrennial Review – Review of the Commission’s Broadcast Ownership Rules and Other Rules 
Adopted Pursuant to Section 202 of the Telecommunications Act of 1996, Report and Order and Order on 
Reconsideration, 23 FCC Rcd 2010, 2081 ¶ 137 (2008) (“2006 Quadrennial Review”).  
23 Southern Bell Telephone and Telegraph Company’s Petition for Limited Stay and Waiver of the Commission’s 
Third Computer Inquiry Rules Governing Common Carrier Provision of Low Level Protocol Conversion, 4 FCC 
Rcd 2748, 2749 and n.34 (Com. Car. Bur. 1989).
24 Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1971).
25 See 2006 Quadrennial Review, 23 FCC Rcd at 2081.
26 Id. at 2081-2.
27 See 2002 Biennial Review Order, 18 FCC Rcd at 13726.
6
Nassau has also failed to demonstrate irreparable harm.  To constitute “irreparable harm,” the 
injury must be “both certain and great [and] it must be actual and not theoretical.28 Therefore, to 
demonstrate irreparable harm, Nassau must provide “proof indicating that the harm [it alleges] is certain 
to occur in the near future.”29 Recoverable monetary loss may constitute irreparable harm only where the 
loss threatens the very existence of the movant’s business.30
Nassau simply alleges that “[w]ithout a stay, Capitol will be operating a station on a stand-alone 
basis in a market that it decided to exit when it entered into the original agreement with Nassau.  Nassau 
will suffer financial loss as a result of the termination of the WWHK JSA and Capitol will be forced to 
make other, last minute and temporary arrangements for selling advertising on WWHK.”31 Nowhere does 
it allege that these harms are certain and great or anything more than theoretical.  Nor do they threaten the 
very existence of either party’s business.  Requiring a licensee to sell advertising time on its own station 
is unlikely to threaten that station’s viability.  Indeed, any losses are speculative and may be of limited 
duration, as the parties may of course reinstitute the JSA should the Commission overturn the WWHK 
Order. 
There is no public interest in prolonging an arrangement that provides Nassau with 
attributable interests in Concord Metro stations above the limit which the Commission considers 
necessary to protect competition in this local radio market.  While Nassau has pointed to (speculative) 
harms to the private interests of both it and Capitol that would result from the denial of its stay request, 
Nassau has not demonstrated any public interest benefit to grant of a stay while it pursues its Application 
for Review, and we discern no such benefits.  As discussed above in connection with Nassau’s waiver 
request, we believe that the public interest is better served here by requiring Nassau to comply with the 
local radio ownership rules.  We note that, although the JSA here was executed on July 16, 2004, prior to 
the effective date of the in-market JSA attribution rule, it was not terminated prior to September 3, 2006, 
despite the explicit Commission directive that all non-compliant JSAs be terminated by that date and 
despite the fact that the Application had been dismissed on February 6, 2006.  We believe, therefore, that 
Nassau has been in violation of Section 73.3555 of the Rules since September 3, 2006, and we will refer 
this matter to the Enforcement Bureau.
Ordering Clauses. Accordingly, IT IS ORDRED that the “Request for Temporary Waiver 
and/or Stay” filed by Nassau Broadcasting I, LLC, IS DENIED.  Nassau IS ORDERED to take all steps 
necessary to come into compliance immediately with the Commission’s Rules.
IT IS FURTHER ORDERED that the Joint Sales Agreement between Nassau Broadcasting I, 
LLC, and Concord Broadcasting LLC, with regard to Station WWHK(FM) Concord, New Hampshire, 
SHALL BE TERMINATED IMMEDIATELY AND THE COMMISSION SHALL BE NOTIFIED of 
such termination within 10 days of the release of this decision.32 No request for reconsideration or other 
  
28 See Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985).
29 Id.
30 Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d at 843 n.2.
31 Request at 7 – 8.
32 Notification of the termination shall be made by letter to Peter H. Doyle, Chief, Audio Division, Media Bureau, 
Federal Communications Commission, 445 12th Street, S.W., Washington, DC 20554.
7
appeal shall excuse compliance with these orders.  Upon notification of the termination of the JSA, the 
Media Bureau will address the enforcement issues relating to Nassau’s violation of Section 73.3555(a) of 
the Commission’s Rules.
Sincerely,
Peter H. Doyle
Chief, Audio Division
Media Bureau
cc: David G. O’Neil, Esq.
Capitol Broadcasting Corporation, Inc.
Concord Broadcasting, LLC