FCC Enforcement: The Paper Tiger Howls

April and May were very busy months for FCC field agents, as they tagged unlicensed FM stations in 11 states. In doing so, the total number of enforcement actions for the first half of the year is very likely to surpass the total for all of 2005. You’d think the FCC was on the warpath against pirates, and in one sense, it is. But it’s not as serious as it may seem.
It is true that the FCC is making contact with more stations. In most cases, this is most likely due to increased complaints from licensed stations who are being more diligent about scanning their local dials for signals which “don’t belong.” However, the contact is generally going no further than station visits and follow-up warning letters. In fact, the FCC now issues multiple warning letters to multiple parties involved in a single station. Three separate people received warning letters for the operation of the Portland Radio Authority; three entities have been tagged in an ongoing investigation into RadioActive San Diego; four people in the Pirate Cat Radio case.
Each one of these contacts counts as an enforcement action, which subsequently inflates the FCC’s enforcement activity level as illustrated by our Database. If you strip away these duplicates, the FCC’s still maintaining a higher pace of enforcement activity as compared to previous years, but this perspective reorientation should hopefully ratchet down the level of alarm.
Additionally, the FCC’s enforcement this year is almost wholly confined to intimidation. Less than 1% of its enforcement activities go beyond the visit or letter-writing stage. In fact, the FCC hasn’t even fined anybody yet in 2006 (though it has issued two “we’re going to fine you” letters, both involving cases that were first opened in 2005). This may be because the agency knows it doesn’t have the time and resources to collect all of the fines it might issue.
Then there is the FCC’s apparent inability to follow through on those cases it opens. For example, just recently field agents traced and warned a pirate station operating in New York operated by Moises and Juan Cabrera. The warning letter, issued April 18, makes note of a visit agents made to the station’s location in March. But it mentions nothing about earlier FCC run-ins with the duo: just last year, the FCC went through the same motions, so far as to issue a $10,000 Notice of Apparent Liability against the Cabreras. Not only do this year’s enforcement actions fail to reference the earlier “punishment,” the FCC has made no moves to turn its earlier threat of a fine into an actual forfeiture. It is almost as if the agents in New York are just going through the motions.
Finally, it is important to note the “Florida effect” on the Database. Florida and New Jersey both have state laws on the books that criminalize unlicensed broadcasting. So far, only Florida has actually put its law to use. State officials have raided several stations over the last year and have even arrested a few folks for running pirate stations (though nobody’s yet been directly convicted under the state anti-pirate statute). These enforcement actions are catalogued even though the FCC may only be tangentially involved, and as a result they inflate the apparent application of the more serious end of the enforcement continuum (station raids and criminal prosecutions) but do not represent enforcement strategy on a national level.
If the FCC still counts each warning letter or station visit as a successful pirate silencing, it stands to start bragging in short order. As always, be very careful, but don’t believe the hype.