The authors are communications lawyers with Pillsbury.
Since the government first began regulating the airwaves, it has struggled to eliminate unlicensed radio operators.
In its latest effort, the FCC is taking a hardline approach to this illegal behavior and is partnering with local and federal law enforcement, as well as Congress, to accomplish the task. While Chairman Pai has made clear that pirate radio prosecutions are once again a priority at the FCC, it is Commissioner O’Rielly who has been the most vocal on this front, calling for more aggressive action against unauthorized operators.
The continued prevalence of pirate radio operations has been chalked up to several factors, including insufficient enforcement mechanisms and resources, the procedural difficulties in tracking down unregulated parties and lackadaisical enforcement until recently. Regulators and broadcast industry leaders have also expressed frustration with the whack-a-mole nature of pirate radio enforcement — shutting down one operation only to have another pop up nearby.
Congress has also begun to take an interest in the issue, with the House Subcommittee on Communications and Technology holding a hearing last week [in March] discussing the subject.
One of the witnesses was David Donovan, president of the New York State Broadcasters Association. In his testimony, he listed numerous risks that unlicensed operations present to the public, including failure to adhere to Emergency Alert System rules and RF emissions limits (which can be critically important where a pirate’s antenna is mounted on a residential structure). Pirate operators also create interference to other communications systems, including those used for public safety operations, while causing financial harm to legitimate broadcast stations by diverting advertising revenue and listeners from authorized stations.
Despite these harms, pirate operations continue to spread. This past month, the FCC issued a Notice of Unlicensed Operation to a New Jersey individual after the FCC received complaints from the Federal Aviation Administration that an FM station’s broadcasts were causing harmful interference to aeronautical communications operating on air-to-ground frequencies. FCC agents tracked the errant transmissions to the individual’s residence and confirmed that he was transmitting without authorization.
Days later, the FCC issued an NOUO to another New Jersey resident who was transmitting unlicensed broadcasts from a neighborhood near Newark Airport. Once again, FCC agents were able to determine the source of the signal and found that the property owner was not licensed to broadcast on the frequency in question.
In each of these NOUOs, the FCC stated that the transmission of unlicensed radio signals violates federal law and demanded the offenders immediately cease operations. Each party was given 10 days to provide the FCC with any evidence that it is authorized to operate on the frequencies in question. The FCC will use these responses and any other relevant information available to determine what type of enforcement action it may pursue against these individuals. Violators risk fines, confiscation of contraband equipment and even imprisonment.
AN INCREASE IN ENFORCEMENT
The FCC’s actions are not limited to New Jersey — the past 18 months have seen a major uptick in pirate radio enforcement actions by the FCC across the country.
According to unsealed court documents, the FCC recently teamed up with the U.S. Marshals Service and the Boston Police Department to seize radio transmission equipment from two unlicensed stations in Boston. In that case, the FCC began investigating the stations after receiving complaints from the public, including a complaint from a licensed broadcaster about interference with its signal. The equipment seizure came after the FCC issued several NOUOs to the unlicensed stations throughout the summer and fall of 2017.
One of the unlicensed stations was well-known in the area. Videos and photographs of live broadcasts were posted to the station’s social media page during the weeks before and after the FCC’s warnings. As of the end of March, the station still has an active website and social media presence. Its website prominently displays messages encouraging advertisers to reach out for on-air spots, and its social media page shows local community leaders and musicians at its studio.
The other pirate station was operated by a woman who the FCC claimed was not only the station operator, but the host of her own weekday afternoon program.
In response to these high-profile actions, Rosemary Harold, chief of the FCC’s Enforcement Bureau, emphasized the FCC’s focus on pirate radio stations. “We are pursuing multiple legal routes to stop pirate broadcasters; the seizure action in Boston is just one of them.”
THE PIRATE ACT
David Donovan noted in his testimony before the House subcommittee that unlicensed operations are not rarities, particularly in larger radio markets, citing a recent study of the New York metropolitan area that revealed the existence of at least 76 unauthorized radio stations in a four-day span.
A major obstacle to enforcement, however, is the limited tools the FCC has to go after pirates. Federal law currently limits the fine for pirate radio operations to $19,246 per day of a continuing violation, up to a maximum of $144,344 for a single act or failure to act. It has become apparent that these fines are not deterring pirates, and there now appears to be bipartisan support in Congress for dramatically raising those fines.
Currently pending before the House is the Preventing Illegal Radio Abuse Through Enforcement Act (“PIRATE Act”), which would subject violators to a maximum fine of $100,000 per day of a continuing violation up to a new maximum fine of $2,000,000 per act. [Read it at https://tinyurl.com/rw-pirateact.]
The proposed legislation would also codify a recent Enforcement Bureau practice of penalizing individuals who facilitate such behavior by knowingly providing services or access to property that directly aids pirate operations. The bill also takes aim at the equipment used in pirate operations, giving the FCC authority to destroy equipment held from in rem seizures within three months of its removal. In addition to strengthening enforcement tools, the legislation would require the FCC to perform biannual enforcement sweeps of the five largest radio markets (New York, Los Angeles, Chicago, San Francisco and Dallas) to prosecute pirate operations.
As the FCC steps up its enforcement efforts and Congress gets involved, it looks like stormy seas ahead for pirate radio operators.
This article appeared in Pillsbury’s FCC Enforcement Monitor newsletter. Visit www.pillsburylaw.com.
At the spring NAB Show, Chairman Pai reiterated that fighting pirates is “a top enforcement priority.” He reported that since January 2017, efforts have included 306 investigations resulting in 210 NOUOs, an NAL for forfeiture and a “groundbreaking” settlement with a Miami-area operator to end broadcasts and pay a fine. The FCC also referred cases to Justice Department to obtain court orders, leading to four cases of equipment being seized in Boston, New York and Miami. “In 2017, the FCC took more than twice as many actions against pirate broadcasters that it did the year before,” it stated, with $143,800 in fines, and proposed fines totaling $323,688. The commission also for the first time found property owners apparently liable for actively supporting activity on their property. “These actions have resulted in numerous unlicensed stations ceasing operation,” it said.