Federal Communications Commission
Washington, D.C. 20554
March 19, 2013
 DA 13-458
In Reply Refer to:
1800B3-CEG
Released: March 19, 2013
Christopher D. Imlay, Esq.
Booth, Freret, Imlay & Tepper, P.C.
14356 Cape May Road
Silver Spring, MD 20904
Anthony T. Lepore, Esq.
P.O. Box 823662
South Florida, FL 33082
Lewis J. Paper, Esq.
Pillsbury Winthrop Shaw Pittman LLP
2300 N Street NW
Washington, DC 20037            
In re: WTOK-FM, San Juan, Puerto Rico
Facility ID No. 4936
File No. BALH-20090206ACE
Petition for Reconsideration
Dear Counsel: 
We have before us a Petition for Reconsideration (“Petition”) filed by RAAD Broadcasting 
Corporation (“RAAD”)1 on July 18, 2012, seeking reconsideration of the grant of application for the 
assignment of WTOK-FM, San Juan, Puerto Rico (the “Station”), from MSG Radio, Inc. (“MSG”) to WIAC-
FM, Inc. (“WFI”),2 and related pleadings.3  For the reasons stated below, we deny the Petition.
I. Background  
Prior station transaction.  On August 20, 2007, Luis A. Mejia (“Mejia”) filed an application 
seeking consent to assign the Station’s license to MSG (the “Mejia Application”).4 The Mejia 
Application included a copy of an asset purchase agreement for the sale of the Station license, callsign, 
and other intangibles to MSG.  In September 2007, the Commission received two petitions to deny the 
Mejia Application, alleging that Mejia and MSG had failed to file documents germane to the transaction.  
Specifically, the petitioners provided purported copies of: (1) an asset purchase agreement dated August 
  
1 RAAD is the licensee of station WXYX(FM), Bayamon, Puerto Rico, and the parent corporation of the licensees 
of stations WXLX(FM), Lajas, Puerto Rico, and WELX(FM), Isabela, Puerto Rico.
2 MSG Radio, Inc. c/o Lewis J. Paper, Esq, et al., Letter, 27 FCC Rcd 7066 (MB June 20, 2012) (“Letter Decision”).  
The parties consummated the transaction on September 21, 2012.
3 On August 17, 2012, MSG filed an Opposition to Petition for Reconsideration (“MSG Opposition”).  On August 
20, 2012, WFI filed an Opposition to Petition for Reconsideration (“WFI Opposition”).  On August 31, 2012, 
RAAD filed a Reply to each of the Oppositions (“MSG Reply” and “WFI Reply,” respectively). 
4 File No. BALH-20070820AGE.
210, 2007 (“Bestov APA”), under which Bestov Broadcasting, Inc. of Puerto Rico (“Bestov”)5 would sell 
the studio, office, and transmission facilities needed to operate the Station to Madifide, Inc., owned by 
members of the Soto family (“Madifide”); and (2) an undated “Shared Services Agreement” (“SSA”) 
between MSG and Madifide, allowing MSG access to the Station’s physical facilities but retaining 
MSG’s responsibility for, inter alia, the Station’s personnel, programming, and finances (collectively, the 
“Mejia Transactional Documents”).  These documents, petitioners argued, reflected an unauthorized de 
facto transfer of control of the Station to Madifide.
On May 2, 2008, the Media Bureau (“Bureau”) sent a letter of inquiry (“LOI”) to Mejia, MSG, 
and Madifide, requesting additional information to ascertain whether MSG would exercise a meaningful 
degree of control over the Station.6 In response, the parties provided copies of the Bestov APA and SSA, 
as well as a draft option agreement under which Madifide would acquire a two-year, irrevocable option to 
purchase the Station license when qualified to do so under FCC rules and policies.7 On August 5, 2008, 
the Bureau granted the Mejia Application.8 In doing so, it rejected petitioners’ argument that there had 
been an unauthorized transfer of control of the Station; however, it imposed a forfeiture on the applicants 
for failure to provide all required documents relevant to the Mejia Application.9  
Present transaction.  On February 6, 2009, MSG filed the subject application (the “WFI 
Application”), seeking consent to the assignment of the Station’s license to WFI, a Soto-owned entity.  
Pursuant to the 2003 Ownership Order, a station located within an Arbitron Metro market must use that 
Arbitron Metro as the relevant market for determining compliance with the Commission’s local numerical 
ownership limits.10 In this case, station WTOK-FM is located within the Puerto Rico Arbitron Metro, 
which encompasses the entire island of Puerto Rico.  Absent a waiver, WFI would impermissibly own a 
total of 15 stations in the Puerto Rico Arbitron Metro.11 Therefore, the WFI Application included a 
request to waive the Arbitron Metro-based methodology and instead assess WFI’s compliance with the 
multiple ownership rule using the alternative contour-overlap methodology, which is normally permitted 
only when a station’s community of license is located in an unrated market, i.e., outside any Arbitron 
Metro boundary.12
  
5 Mejia is the 100% shareholder of Bestov. 
6 See Luis A. Mejia, et al., Letter, Ref. No. 1800B3-TSN (MB May 2, 2008).
7 Letter Decision at 2.
8 Luis A. Mejia, Memorandum Opinion and Order and Notice of Apparent Liability for Forfeiture, 23 FCC Rcd 
11902 (MB 2008) (“Mejia Order”). The parties consummated the transaction on January 8, 2009.  No party sought 
reconsideration or review of the Mejia Application grant, which is now final.  MSG filed a Request for Cancellation 
of Proposed Forfeiture on September 4, 2008, which the Bureau considered and rejected.  Luis A. Mejia, Forfeiture 
Order, 23 FCC Rcd 15242 (MB 2008), recon denied, 26 FCC Rcd 11444 (MB 2011).
9 Mejia Order at 11905-6.  
10 47 C.F.R. § 73.3555(a); 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, Report and Order 
and Notice of Proposed Rulemaking, 18 FCC Rcd 13620, 13724-6 (2003) (“Ownership Order”), aff'd in part and 
remanded in part sub nom., Prometheus Radio Project v. FCC, 373 F.3d 372 (2004), cert. denied, 545 U.S. 1123 
(2005).
11 In a market with 45 or more stations, a party may have a cognizable interest in up to eight commercial stations, no 
more than five in the same service.  47 C.F.R. § 73.3555(a).  
12 See Ownership Order, 18 FCC Rcd at 13729.
3On March 18, 2009, RAAD filed a Petition to Deny the WFI Application on two grounds.13 First, 
RAAD alleged that the WFI Application was the final step in a scheme by which the Soto family would 
warehouse the Station with MSG while retaining de facto control over its operations.  RAAD’s argument 
relied heavily on the Mejia Transactional Documents but added two new allegations, namely, that: (1) key 
MSG employees had been previously employed by the Soto family; and (2) MSG had licensed the “Toca 
de To” trademark from the Sotos.  Second, RAAD argued that grant of WFI’s request for waiver would 
lead to an undue concentration of market power in the hands of the Soto family, and that the 
Commission’s prior decision to grant a similar waiver for station WMIO(FM), Cabo Rojo, Puerto Rico 
(the “WMIO Waiver”), was made in error because it did not consider market realities and Puerto Rico’s 
competitive environment.14
In the Letter Decision, the Bureau observed that RAAD’s de facto control argument was mainly 
predicated on facts that were considered and rejected in the context of the Mejia Application.  
Nonetheless, the Bureau re-examined RAAD’s argument in light of the “new, albeit scant, information . . 
. i.e., allegations regarding use of common employees and a common trade name.”15 Accordingly, the 
Bureau again reviewed the terms of the Mejia Transactional Documents, concluding, as before, that “it is 
clear from the terms of the agreements that MSG has ultimate control over personnel and all 
programming decisions and policies . . .”16 The Bureau further found that the fact that “some of the MSG 
employees previously worked for companies owned by the Soto family . . . does not indicate an 
abdication of control.”17 Lastly, the Bureau reasoned that the arms-length licensing agreement allowing 
WFI to use the “Toca de To” trademark reinforces, rather than undermines, MSG’s claims of 
independence from the Soto family.  For these reasons, the Letter Decision dismissed RAAD’s de facto 
transfer of control argument as “based on inferences, conjecture, and erroneous information.”18
As for WFI’s waiver request, the Bureau concluded that the “unique characteristics of Puerto Rico present 
a compelling showing of special circumstances that warrant departing from the Arbitron Metro as the presumptive 
definition of the local market . . ..”19 Specifically, the Bureau determined that Puerto Rico’s extreme mountainous 
topography, large number of radio stations and station owners, and division into eight Metropolitan Statistical
Areas (“MSAs”) as defined by the Office of Management and Budget (“OMB”) all demonstrate that Puerto Rico 
has more centers of economic activity than are accounted for by the single Puerto Rico Arbitron Metro.  In this 
respect, the Letter Decision found that WFI’s waiver request is “essentially identical” to the WMIO Waiver.20  
Contrary to RAAD’s claims that it is impossible for stations to compete against the Sotos, the Bureau found that 
many stations and owners in Puerto Rico do compete with the Sotos and will continue to do so.  Therefore, the 
Letter Decision granted WFI’s request to review the proposed acquisition by defining, for multiple ownership 
purposes, the local radio market(s) in which the Station operates using the contour-overlap methodology.
Pleadings.  In its Petition, RAAD argues that the Bureau erred by ignoring prima facie evidence that there 
was an unauthorized transfer of control of the Station in 2007 to an unspecified member of (or entity controlled by) 
  
13 Letter Decision at 4.
14 Id.; See Luis A. Soto, Letter, 22 FCC Rcd 2549 (MB Feb. 9, 2007).
15 Letter Decision at 5.
16 Id. at 6.
17 Id.
18 Id.
19 Id. at 10.
20 Id. at 7.
4the Soto family.  According to RAAD, it is thus now “proper and timely”21 to revisit the facts surrounding the 
2007 transfer because “the totality of the circumstances of this proposed assignment and the prior actions of the 
parties . . . demonstrate a covert and conspiratorial plan . . . to covertly vest actual control of WTOK-FM in the 
Sotos long before the grant of the [WFI] assignment application and the multiple ownership waiver.”22 RAAD 
also reiterates that the “commercially unusually favorable”23 terms contained in the transactional documents, the 
shared employees, and the “Toca de To” trademark combine to make a prima facie case that an unauthorized 
transfer of control took place.24
With respect to the WTOK-FM Waiver, RAAD’s objections fall into four main lines of argument, as 
follows: 
1. Factual basis for waiver.  RAAD argues that the WMIO and WTOK-FM Waivers ignore crucial facts 
regarding competition in the Puerto Rican radio market.  Specifically, RAAD contends that, although 
there are 56 FM stations in Puerto Rico, 21 of these are noncommercial educational stations, and an 
additional three are “limited in power and/or geography.”25 Of the remaining 32 stations, RAAD claims 
that the “top three groups” now own 22 stations, or 69 percent.26 RAAD also contends that the Letter 
Decision draws the wrong conclusions from Puerto Rico’s topography, disregarding certain 
“demographic facts,” such as driving mobility, that show a lack of social and economic differentiation 
across the island.27 In such a unified market, according to RAAD, smaller station groups cannot compete 
with large stations groups such as that owned by the Sotos, because they cannot offer the same island-
wide advertising packages.28 RAAD also alleges that, in contrast to the Bureau’s findings, station 
WTOK-FM can be listened to in “both Ponce and in Aguadilla and everywhere in between”—excluding 
only the southwest portion of the island.29  
2. Delegated authority.  According to RAAD, the Letter Decision constitutes a “rulemaking by waiver” that 
exceeds the Bureau’s authority by prejudging the outcome of open docket proceedings that also address 
Puerto Rican market definitions.30 In particular, RAAD refers to a 2003 petition for reconsideration of the 
Ownership Order filed by ARSO Radio Corporation (“ARSO”) requesting a permanent exemption for 
  
21 MSG Reply at 4.
22 Petition at 15.
23 Id. at 18. 
24 Id. at 15-20.  RAAD also argues that the same facts show a lack of candor and a violation of the disclosure 
requirement of Section 1.65 of the Commission’s rules, 47 C.F.R. § 1.65.  Id. at 20-21.  RAAD does not develop the 
candor/disclosure arguments further, and it appears that they pertain primarily to the Mejia Application, which is 
now final.  To the extent that these arguments apply to the WFI Application, they are resolved by our discussion 
herein, supra at 7-10.  Because we do not find that a violation of the transfer of control or multiple ownership rules 
has occurred, we do not find a failure to disclose or lack of candor regarding the same.  
25 Petition at 11.
26 Id. at 12.  According to RAAD, these three groups are Uno Radio Group (controlled by the Sotos), SBS Spanish 
Broadcasting Systems, and Univision Radio (both major U.S. broadcasters).  Id. at 13, n.18.
27 Id. at 11-12. 
28 Id. at 4, n.3, 12-13.
29 Id. at 11.
30 Id. at 8-9.
5Puerto Rico from the Arbitron Metro-based methodology.  Because the issue is the subject of a pending 
rulemaking, RAAD argues, grant of the WTOK-FM Waiver is “premature.”31
3. Waiver standard and precedent.  RAAD argues that WFI did not meet the waiver standard because it 
failed to show that “it would work an unusual or undue hardship on the Sotos’ if they were to be held to 
the same standard applicable to every other broadcaster in Puerto Rico.”32 RAAD further contends that 
there are no “special circumstances that differentiate the Sotos from any other broadcasters in Puerto 
Rico”33 and that waiver was based purely on “the alleged uniqueness of Puerto Rico’s topography. . ..”34  
RAAD argues that the WMIO Waiver is inapposite precedent for the WTOK-FM Waiver, because 
station WTOK-FM is a Class B station serving a significantly greater population, including the largest 
economic center on the island (San Juan).35 RAAD also contends that—unlike the WTOK-FM 
Waiver—the WMIO Waiver was “carefully conditioned upon the outcome of the multiple ownership 
rulemaking proceedings”36 and that “the justification for the WMIO grant was specifically stated to be 
inapplicable to a duopoly waiver for stations located in San Juan.”37 RAAD complains that WFI failed to 
show that waiver implements Commission policy better than compliance with the rules or that 
compliance with the rules would be inconsistent with the public interest.38 Rather, RAAD argues, “all 
that [WFI] offered was an argument that the full Commission erred in adopting . . . the Arbitron market 
definition.”39 Finally, RAAD contends that the Bureau failed to give the waiver the requisite “hard look,” 
instead “merely parrot[ing] its own rationale used in the uncontested WMIO waiver proceeding.”40
4. Rule violation. RAAD argues that the WTOK-FM Waiver is “contrary to firmly established Commission 
precedent [the Ownership Order], upheld on judicial appeal, which on its face makes grant of the instant 
waiver unjustifiable.”41 According to RAAD, the WTOK-FM Waiver constitutes a “unilateral 
abandonment by the Audio Division of the Commission’s recently established market definition in Puerto 
Rico . . ..”42
  
31 Id. at 10.
32 Id. at 21; see also id. at 7.  
33 Id. at 7.
34 Id. at 21.  In a related point, RAAD argues that the WTOK-FM Waiver makes it “effectively impossible to deny 
any future duopoly waivers for radio licenses in Puerto Rico . . . the Sotos will now have the unfettered ability to 
restrain competition throughout the Island.”  Id. at 4.
35 Id. at 5, 22.  Station WTOK-FM is a Class B station with an ERP of 50 kW and 347 meters HAAT.  Station 
WMIO(FM) is a Class A station with 3 kW and 238 meters HAAT.
36 Id. at 8.
37 Id. at 22.  We interpret RAAD’s arguments that refer to the “duopoly rule” or a “duopoly waiver” as referring to 
the local radio ownership rule.  The duopoly rule provides that one party may not own two television stations 
licensed in the same Designated Market Area (DMA) unless certain conditions are present.  47 C.F.R. § 73.3555(b).  
This rule does not apply to radio, which is governed by the local radio ownership rule, 47 C.F.R. § 73.3555(a).  
38 Petition at 7, 22. 
39 Id. at 22.
40 Id. at 7-8.
41 Id. at 10.
42 Id. at 5.
6For these reasons, RAAD concludes that the Bureau’s grant of the WTOK-FM Waiver was an “arbitrary 
and capricious” action.43
In its Opposition, MSG addresses only RAAD’s unauthorized transfer of control argument.  MSG 
contends that the Petition should be dismissed for failure to demonstrate that the Letter Decision contained a 
material error or omission.  MSG argues that RAAD “does nothing more than invoke the same facts and reiterate 
the same arguments previously presented to the Bureau in its Petition to Deny” which in turn “relied almost 
entirely on facts and arguments that the Bureau had considered and rejected in 2008 [in the Mejia Order].”44  
RAAD’s allegations were fully considered and rejected in the Letter Decision, MSG concludes, and RAAD fails to 
show any material error or omission in the Bureau’s analysis of the unauthorized transfer of control issue.45
WFI’s Opposition similarly argues RAAD fails to identify any material error or omission in the Letter 
Decision or to raise additional facts not known or existing until after RAAD’s last opportunity to present such 
matters.46 With respect to the waiver standard, WFI protests that it did demonstrate hardship “by clear and 
convincing evidence” because the Arbitron Metro market definition would foreclose “economic opportunities that 
other broadcasters in other, properly defined markets, were able to pursue.”47 WFI contends that the WTOK-FM 
and WMIO Waivers are based on the same factual predicates: namely, (1) the “extreme topography” of the island, 
which prevents stations on one side of the island from competing with stations on the other side; and (2) the 
incongruity of including within a single Arbitron Metro eight MSAs and three Combined Statistical Areas.48  
Lastly, WFI argues that the WTOK-FM Waiver, like the WMIO Waiver, is conditional, as it specifies that any 
future application to change or increase station WTOK-FM’s technical facilities must be accompanied by a new 
showing of compliance with the local radio ownership rules, including, if necessary, a new request for waiver.  
WFI also challenges RAAD’s factual allegations, arguing that RAAD offers no support for its assertions 
regarding: (1) the number of competing radio stations in Puerto Rico; (2) the “national” nature of the Puerto Rican 
broadcast market; or (3) the inability of smaller broadcasters to compete with WFI.49 WFI contends that WFI’s 
alleged market share of 26 percent—even if verified—is not problematic, pointing to a 2001 decision approving an 
assignment that would result in an assignee having 48.8 percent share of a market’s advertising revenue.  Finally, 
WFI argues that RAAD includes other major Puerto Rico broadcasters in its competition analysis “for no readily 
ascertainable reason other than to imply some sort of broadcast ‘cartel’…”50
     
43 Id. at 5, 11.
44 Id. at 2, 4.
45 Id. at 7-8.
46 WFI Opposition at 1-2, 7.
47 Id. at 6. 
48 Id. at 5, 8.  WFI also contends that the WTOK-FM Waiver confirms previous holdings in similar contexts that 
Puerto Rico should be treated differently based on its “unique geographic issues.” Id. at 9.
49 Id. at 10-12. WFI argues that “[n]either BIA nor the Audio Division distinguish between commercial AM and 
commercial FM stations in computing the number of stations in a market because ALL of them compete with each 
other.” Id. (emphasis in original).
50 Id. at 13-14.
7In its Reply to WFI, RAAD largely reiterates arguments made in the Petition, adding a discussion 
justifying Arbitron’s designation of the Puerto Rico Metro as single market.51  
II. Discussion
Reconsideration is warranted only if the petitioner shows an error of fact or law in the Commission’s 
original order, or raises additional facts not known or existing at the time of the petitioner's last opportunity 
to present such matters.52 RAAD has not met this burden. 
Unauthorized transfer of control.  To determine whether there has been an unauthorized 
transfer of control of a broadcast station in violation of Section 310(d) of the Act,53 the Commission looks 
to see whether a party that is not the licensee exercises control over the programming, personnel, and 
finances of the station.54 A licensee is permitted to delegate the day-to-day operations relating to these 
three areas, so long as it continues to set the policies guiding those operations.55
RAAD’s primary argument on this point is that the Bureau failed to arrive at the correct 
conclusion based on the totality of the facts before it.56 On reconsideration, RAAD does not adduce new 
facts in support of this position but merely contradicts the conclusions of the Letter Decision.57 It is 
axiomatic that reconsideration will not be granted merely for the purpose of again debating matters on 
which the Commission has deliberated and spoken.58 The Letter Decision thoroughly addressed RAAD’s 
contentions regarding unauthorized control and we will not do so again here.  While properly refraining 
from revisiting the 2008 Mejia transaction itself, now long final,59 the Bureau re-examined the Mejia 
Transactional Documents as potentially relevant to current, or ongoing, unauthorized control of station 
WTOK-FM, concluding that “[i]t is clear from the terms of the agreements that MSG has ultimate control 
over personnel and all programming decisions and policies . . ..”60 The Letter Decision also separately 
evaluated each of RAAD’s new allegations, finding that neither use of a Soto trademark nor employment 
  
51 WFI Reply at 4-6.
52 See 47 C.F.R § 1.106(c) and (d); WWIZ, Inc., Memorandum Opinion and Order, 37 FCC 685, 686 (1964), aff'd 
sub nom. Lorain Journal Co. v. FCC, 351 F.2d 824 (D.C. Cir. 1965), cert. denied, 387 U.S. 967 (1966) (“WWIZ, 
Inc.”).
53 47 U.S.C. § 310(d).
54 See, e.g., Solar Broadcasting Company, Inc., Memorandum Opinion and Order, 17 FCC Rcd 5467, 5486 (2002); 
WHDH, Inc., Memorandum Opinion and Order, 17 FCC 2d 856, 863 (1969) (subsequent history omitted).
55 See, e.g., WGPR, Inc., Memorandum Opinion and Order, 10 FCC Rcd 8140, 8142 (1995), vacated on other 
grounds sub nom. Serafyn v. FCC, 149 F.3d 1213 (D.C. Cir. 1998).
56 Petition at 15-16 (“The Division concluded that RAAD’s argument was based on inferences, conjecture, and 
erroneous information.  A review of the relevant facts, however, demonstrates otherwise.”)
57 47 C.F.R. § 1.106(c) (stating that a petition for reconsideration may rely on facts or arguments not previously 
presented only if circumstances have changed, the facts were unknown to the petitioner and could not have been 
discovered through the exercise of ordinary diligence, or consideration of the facts or argument is in the public 
interest).
58 WWIZ, Inc., 37 FCC at 686.
59 Letter Decision at 5.
60 Id. at 6.
8of former Soto employees evidences unauthorized control of the Station.61 Finally, the Letter Decision 
examined all of the facts collectively, concluding that the whole is not greater than the sum of its parts: 
“[H]aving reviewed the agreements and the entire record before us, we reject RAAD’s first argument that 
MSG and the Soto family engaged in an unauthorized transfer of control.”62 By merely reiterating facts 
and arguments that were before the Bureau at the time of the Letter Decision while urging a different 
result, RAAD manifestly fails to meet the reconsideration standard with respect to the alleged 
unauthorized transfer of control of station WTOK-FM.
Waiver.  The Commission's rules may be waived only for good cause shown.63 The Commission 
must give waiver requests “a hard look,” but an applicant for waiver “faces a high hurdle even at the 
starting gate”64 and must support its waiver request with a compelling showing.65 Waiver is appropriate 
only if both (1) special circumstances warrant a deviation from the general rule, and (2) such deviation 
better serves the public interest.66 In this case, RAAD has not shown that the Letter Decision misapplies 
the waiver standard. 
Factual basis for waiver.  We disagree with RAAD’s contention that the Bureau arbitrarily or 
capriciously ignored facts or arguments before it regarding broadcast competition in Puerto Rico.  
“Market realities and Puerto Rico’s competitive environment” are thoroughly deliberated upon and 
decided in the Letter Decision, which devotes no fewer than six paragraphs to the subject.67 The facts 
cited in the Petition in furtherance of RAAD’s waiver arguments were either before the Bureau at the time 
of the Letter Decision or could have been discovered through the exercise of ordinary diligence.68  
Accordingly, we do not revisit the factual basis for the Letter Decision’s conclusions regarding broadcast 
competition in Puerto Rico, nor do we entertain RAAD’s arguments on this point, upon which we have 
already deliberated and spoken.69  
Delegated authority.  RAAD argues that the “fundamental error” of law in the Letter Decision is 
that the same issues raised by WFI’s waiver request are being addressed in “still-open” dockets.70 The 
WTOK-FM Waiver, according to RAAD, thus constitutes an impermissible “rulemaking by waiver.”71  
However, the ARSO petition for reconsideration of the 2002 Biennial Ownership Order was dismissed in 
the 2006 quadrennial broadcast ownership proceeding, and, to date, the Commission has not yet initiated 
  
61 Id.
62 Id. at 7 (emphasis added).
63 47 C.F.R. § 1.3.
64 WAIT Radio v. FCC, 418 F.2d 1153, 1157 (D.C. Cir. 1969) (“WAIT Radio”) (subsequent history omitted).
65 Greater Media Radio Co., Inc., Memorandum Opinion and Order, 15 FCC Rcd 7090 (1999) (citing Stoner 
Broadcasting System, Inc., Memorandum Opinion and Order, 49 FCC 2d 1011, 1012 (1974)).
66 NetworkIP, LLC v. FCC, 548 F.3d 116, 125-128 (D.C. Cir. 2008); Northeast Cellular, 897 F.2d at 1166.
67 Id. at 7-10.
68 47 C.F.R. § 1.106(c).
69 WWIZ, Inc., 37 FCC at 686.
70 WFI Reply at 3.
71 Petition at 8. 
9a rulemaking proceeding specifically addressing the Puerto Rico market definition methodology.72  
Therefore, there is no open Commission docket concerning market definition in Puerto Rico.  More 
fundamentally, the Letter Decision is not an “agency statement . . . of future effect” such as would 
constitute a rule under the Administrative Procedure Act.73 Therefore, the WTOK-FM Waiver in no way 
prejudges the Commission’s ultimate disposition of the issues raised in ARSO’s petition for 
reconsideration.74 Rather, the Letter Decision merely takes the requisite “hard look” at the particular facts 
presented by WFI’s waiver request.  Such a waiver, made on a case-specific basis, is well within the 
scope of the Bureau's delegated authority.75  
Waiver standard and precedent.  RAAD’s various arguments that the Bureau erred by 
misapplying the waiver standard in this case are unavailing.  First, WFI was not required to show 
individualized hardship, as RAAD contends.  When considering a waiver request, the Commission may
take into account considerations of hardship, equity, or more effective implementation of overall policy.76  
In the Letter Decision, the Bureau found that Puerto Rico’s unique characteristics—mountainous 
topography, large numbers of radio stations and radio owners, and multiple MSAs—demonstrate that the 
island contains multiple local radio markets.77 Because the purpose of the multiple ownership rules is to 
“preserve a healthy and robust competition” among broadcasters in each local market,78 it is in the public 
interest to define that market as rationally as possible.79 The Commission has stated that, in most cases, 
the Arbitron Metro-based methodology achieves that purpose.80 In this particular case, however, because 
the Puerto Rico Arbitron Metro designation fails to adequately capture market realities, the policy goal of 
accurate market definition is better met by permitting use of the contour-overlap methodology.  No 
separate showing of individual hardship was therefore necessary to justify grant of the waiver.
Second, while an applicant for waiver must show “special circumstances,” those circumstances 
need not be unique to the applicant, as RAAD contends.81 Other licensees may have similar special 
  
72 2006 Quadrennial Regulatory 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, n.427 (2008) (“We have granted ARSO’s waiver request to use the interim 
contour-overlap methodology pending the outcome of its Petition, which will be resolved in a separate proceeding.  
Therefore, we dismiss ARSO’s petition in this proceeding.”) (internal citations omitted). 
73 5 U.S.C. § 551(4).  The Letter Decision is an order adjudicating an individual licensing matter.  Id. § 551(6)-(8).
74 The Letter Decision also makes clear that any future application by WFI to change or increase station WTOK-
FM’s technical facilities must be accompanied by a new showing of compliance with the local radio ownership rules 
and, if necessary, a new request for waiver of the use of the Arbitron Puerto Rico Metro as the presumptive market 
in which station WTOK-FM competes.  Letter Decision at n. 4; See also 47 C.F.R. § 73.3555, n.4.
75 47 C.F.R. § 0.283.
76 WAIT Radio, 418 F.2d at 1159; Northeast Cellular, 897 F.2d at 1166.
77 Letter Decision at 8-9.  Because the Bureau explicitly based its holding on these multiple facts, we disagree with 
RAAD’s contention that “all [WFI] offered was an argument that the full Commission erred in adopting . . . the 
Arbitron market definition.”  See Petition at 22.
78 Ownership Order at 13623.
79 See id. at 13724-5.
80 Id. at 13813.
81 Petition at 7 (arguing that WFI has failed to distinguish itself from “any other broadcasters in Puerto Rico”).
10
circumstances warranting waiver.82 In fact, it is common and appropriate practice for staff to analyze a 
waiver request in part by comparing it to similar cases, although each request is ultimately decided on its 
own merits.  Conversely, because each waiver request is evaluated on a case-by-case basis, factual 
differences between stations WMIO(FM) and WTOK-FM do not militate against waiver for station 
WTOK-FM.  We also disagree with RAAD’s contention that the justification for the WMIO Waiver is 
expressly inapplicable to any San Juan station.  Rather, the WMIO Waiver was based (in part) on station 
WMIO(FM)’s distance from San Juan, just as the WTOK-FM Waiver is based (in part) on station 
WTOK-FM’s distance from the western portions of the island.  The relevant factor in each case is that the 
station could not reach or compete in certain parts of the island, thus indicating the existence of multiple 
radio markets.  
Rule violation.  RAAD contends that the WTOK-FM Waiver is “contrary to firmly established 
Commission precedent,”83 constituting an “abandonment. . . of the Commission’s recently established 
market definition . . .”84 RAAD’s argument boils down to an observation that, in the absence of a waiver, 
the proposed transaction would inevitably violate the Commission’s rules.  We have long rejected such 
tautological objections to waiver requests and do so again here.85
III. Conclusion/Actions.
We find that grant of the WFI Application was not in error and was consistent with the public 
interest, convenience, and necessity.  Accordingly, IT IS ORDERED that RAAD’s Petition for 
Reconsideration IS DENIED.  
Sincerely,
Peter H. Doyle
Chief, Audio Division
Media Bureau
  
82 On this point, we note that the Letter Decision requires WFI to satisfy the numerical limitations of Section 
73.3555(a)(1)(iii); i.e., WFI may not have a cognizable interest in more than eight commercial stations, no more 
than five in the same service. Our waiver merely permits the pre-2003 market definition methodology—contour-
overlap analysis—to be used instead of the Arbitron Metro-based methodology when determining such compliance.
Thus WFI does not have an “unfettered ability to restrain competition,” as alleged by RAAD, but is constrained by 
the numerical limits of our local radio ownership rule.
83 Petition at 5.
84 Id. at 10. 
85 WAIT Radio, 418 F.2d at 1158 (“The very essence of waiver is the assumed validity of the general rule, and also 
the applicant's violation unless waiver is granted.”).