FCC Anti-Pirate Enforcement in 2016: Symbolic Inflationism Ahoy

A surprising uptick in the Enforcement Action Database for 2016: 201 total actions were logged last year, which is up from the prior two years. Furthermore, the frequency of threats of fines and actual fines against unlicensed broadcasters also rose: 9 NALs issued for a total of $155,000, and 5 forfeitures handed out for a total of $65,000. We haven’t seen numbers this large since 2014.
It gives some statistical credence to recently-former FCC Chair Tom Wheeler’s assertion that, despite the agency’s admittance that its license-enforcement protocol is effectively broken, it hasn’t ceded the field entirely. Unfortunately, statistics can be fudged, and the FCC’s done that well in the last year.
One only need look at a sample of the high-profile NAL/forfeiture orders that the agency’s issued to see just how the enforcement-action stats got a boost. Let’s first start with the operations of Belarmino Lara in California, who was dinged with a $25,000 NAL in December. The FCC’s case on this station began all the way back in 2013, when the agency visited Lara and his church, Iglesia el Remanente Fraternidad Elim, that summer after receiving a complaint about his station’s existence (as in the vast majority of pirate radio-related cases, complainant-details are unknown).
In the latter half of that year, FCC field agents visited the station, issued a warning-letter, and spoke via phone with Lara’s adult children who tried to ameliorate the FCC’s activity; they were partially successful as the station temporarily left the air.
More than a year later – in January 2015 – the FCC was informed that Lara and his station were back. There’s no record of whether or not the station had been active between the FCC’s engagements with it. Agents visited and warned the station five times – in January, February, March, April, and July. Then, inexplicably, they seemingly abandoned the investigation until February 2016, when they again stopped by to make field strength measurements of Lara’s signal, and followed up with another warning letter in April. This was followed by four more visits – in June, July, August, and November.
Only after twelve encounters – half of which occurred in 2016, and all of which the FCC counts (as do I) as individual “enforcement actions,” did the agency pull the triger on a threat to fine Lara – no formal forfeiture has been issued as of this writing, but you’d think after such thorough follow-up and three years’ worth of operations, the process would be primed for punishment. But that’s obviously not the case.
Similarly, consider Florida’s Charles Philome, who was also dinged with a NAL worth $20,000 in November of 2016. This is a clear example of the futility of the “whack-a-mole” approach to pirate radio hunting. Philome first appeared on the FCC’s radar in November of 2015, involving a station he ran out of the offices of his tax-preparation business. FCC field staff did a lot of research, assembling documents on Philome’s business, property records, and even some online sleuthing to find the station’s website and link phone numbers to Philome.
That December, the FCC paid its first visit to the station, and then followed up with a phone call to Philome, who admitted to running the station (which he estimated broadcast with about 50 watts of power). In January and February of 2016, FCC agents – for reasons not quite clear – decided to follow up on Philome’s case. They first discovered that the station’s website sported a new FM frequency, and they confirmed the change with another field measurement. More than five months would pass until the FCC would again check in on Philome, in July. Another visit followed in September, and only after that did the FCC escalate to a NAL.
So, to summarize: a guy in Florida whose station hopped two frequencies over the course of a year – and, in an interesting sidenote in the NAL itself, also allegedly rented studio-space to a second unlicensed station – gets fined $5,000 less than a guy in California whose church-station remained stable and non-evasive throughout three years of operation. It suggests that there’s a surprising level of arbitrariness at the field-agent level when it comes to determining “proper” penalties in unlicensed broadcast cases.
If you cut through the inflationary workflow, whose aggregate numbers suggest the FCC’s doing more to hunt and bust pirate radio operators, you actually discover that the agency’s making contact with fewer stations and operators than it would like us to believe. This is fundamentally clear from the 2016 map of enforcement activity at right, which highlights just nine states in the nation where the FCC’s gone after unlicensed broadcasters; this compared to enforcement activity across 10 states in 2015, and 20 states and territories in 2014 – years where the aggregate number of enforcement actions was actually fewer.
In addition, while the political pressure to crack down on pirate stations has been organized mostly from New York and New Jersey, Florida reclaimed the top spot for FCC enforcement frequency last year, breaking a three-year trend of NY/NJ taking the #1 and #2 enforcement locations respectively (see chart below, click for larger version). Despite this deviation, it remains the case that the number of unlicensed stations in NY/NJ runs higher than the number to be found in Florida. The New York State Broadcasters and New Jersey Broadcasters Associations must feel quite unsatisfied with the results of their hard “work” in this regard.
FCC Pirate Radio Enforcement 'Hot Spots,' 2010-2016
All of this will certainly make for an interesting expected change in tactics/strategy under a Trump-annointed FCC. Early signs in other realms of media policy aren’t good: new Chairman Ajit Pai, who promised to take a “weed whacker” to the agency’s regulatory scope and focus, has already made many controversial moves to undo progressive shifts in media policy on a plethora of issues, including media ownership, network neutrality, and spectrum policy – including ditching research that doesn’t comport with the meta-ideology of Mr. T.
At the same time, the agency’s supposedly well along in the process of reducing its field-enforcement footprint around the country leaving a veritable handful of “boots on the ground” to conduct any crackdown on unlicensed broadcasting. Will we see a dramatic reversal in the agency’s trajectory in this regard as well? If so, how, will Pai et al. rationalize any new investments in enforcement? Or might they pursue the route of outsourcing the policing of the airwaves, even “vigilantizing” the private sector to step in?
Many Americans already believe radio’s a dead or dying medium thanks to all of the other ways available now to deliver and listen to audio content. But the intensity of the century-old struggle for access to the airwaves, and the potential for this struggle to become a policy-focus in the near future, warrants skepticism of such dismissiveness. Meanwhile, those working on resistance-media projects would be wise to think old-school about the powerful communciations resource resting right under their noses as they organize against the incipient autocracy.