FCC Enforcement: Questionably Redundant and Retributive

Two-thirds of 2012 is in the can, and the FCC seems to be adhering to its “new normal” when it comes to pirate radio enforcement. Field agents have conducted 183 enforcement actions as of the end of August – this is up from the 132 actions logged by this time a year ago, but well off the year-over-year record-breaking enforcement pace set between 2006 and 2010.
The FCC’s been involved in anti-pirate enforcement activity in 15 states and Puerto Rico so far this year, as opposed to more than two dozen states by this point in 2011. The hottest spots continue to be the New York metropolitan area as well as the state of Florida more generally.
In New York, it’s standard practice now for field agents to visit a suspected pirate and follow-up with warning letters to both the operator and the owner of the building in which it is housed, typically within a week or two. This administrative tactic inflates the perceived activity of the FCC’s NYC field office, but does suggest that the agency has found pressuring landlords returns a dividend.
In Florida, licensed broadcasters appear to be warming to the use of the state’s anti-pirate law to go after rogue broadcasters. Albert Knighten, a retired Navy air traffic controller who ran a bona-fide community station from his home, was busted by local officials in December and charged under state law (these charges will be dropped after he completes a “diversion program,” which is essentially a form of community service).
In June, the FCC added insult to injury by issuing a $15,000 Notice of Apparent Liability to Knighten for his electronic civil disobedience, but he was able to successfully whittle that down last month to an actual fine of just $1,200.
There is already another pirate broadcaster teed up for prosecution under Florida’s anti-pirate law: a man who ran a fleabag operation squatting a frequency used by one of south Florida’s largest public broadcasters. Manifestly irresponsible folks like these get no sympathy; they’re just asking for it.
Interestingly, though New York and New Jersey also have anti-pirate statutes on the books, nobody’s been prosecuted under them as of yet.
The FCC is also assessing higher monetary forfeitures to pirates in Florida. Whereas the base fine for unlicensed broadcasting is $10,000, the FCC’s seeking $15-20,000 or more in most cases there now. The punitiveness seems to stem from two factors: that pirates publicize their stations and refuse to allow field agents to inspect them.
NALs and forfeitures from Florida this year cite “investigation” involving the browsing of station web sites, Facebook pages, and noting how active the stations actually are in their local communities. This, apparently, warrants a heavier hand, and adds evidentiary fodder to the old adage that the life cycle of a pirate station is inversely proportionate to its publicity. There is no easy solution to this dilemma, though it is interesting that the FCC considers this more “willful and egregious” behavior than simply putting an unlicensed signal on the air, which is really the only thing it’s supposed to care about.
The more troublesome bump in fines stems from the refusal of station operators to let field agents inspect their gear. For the last year or so, the FCC’s been adding such bonus-penalties to pirate forfeitures, citing a legally questionable regulation that supposedly requires all broadcasters to allow FCC inspection of their stations at any time.
The FCC has not always invoked this particular authority – witness this confrontation with the FCC outside Free Radio San Diego in 2003, where one of the operators berated field agents for slinking around. Although the station was raided two years later, it returned to the air in short order. In 2007, one man was initially socked with a $10,000 NAL for the station; no reference or penalty-adjustment was made regarding prior refusals to inspect. Ultimately, the forfeiture was reduced to only $750.
This particular enforcement tactic is just begging to be challenged in the courts – but a recent decision out of the Fifth Circuit Court of Appeals may have made such challenges much harder. The case originates with a couple in Austin, Texas hit with a $10,000 fine for pirate broadcasting in 2010. They went to court over it, and last month the Fifth Circuit ruled that they did not have standing to raise specific points of law in their defense. (That they challenged the FCC on a hopeless point of interstate commerce certainly did not help matters.)
Although the FCC may be tweaking its administrative protocols for dealing with unlicensed broadcasters, it’s still wholly unable to cope with the phenomenon of pirate radio.