FCC Field Enforcement: Fourth Amendment Still Rules, Apparently

Last year, in response to coverage that the FCC felt it had the authority to conduct warrantless searches of private property in its objective to clear the airwaves of unauthorized activity, the Electronic Frontier Foundation filed a Freedom of Information Act Request with the agency. It asked the FCC to somehow rectify the quandary between its self-stated authority and the U.S. Constitution’s Fourth Amendment, which protects the public from “unreasonable” (i.e., unwarranted) searches and seizures.
Last month, the FCC responded to the EFF’s FOIA request, releasing a small cache of well-redacted documents related to the agency’s field investigation techniques. In a document entitled “Basic Investigation Techniques – On-Scene Overview,” the Commission seems to make its position clear: “Agents should never trespass on private property. You do have legal authority to inspect any radio station (broadcast, land mobile, amateur, etc.) at any time; however, you should contact the property owner to gain access.” In a later chapter, properly entitled “Limits of Authority,” the prohibition against trespassing is further articulated and specifies that FCC field agents may be held criminally liable if break this law.
Several documents give unprecedented insight into how FCC field agents do their work; it’s mostly a lot of calling and letter-writing, but it also includes information on possible stakeouts related to enforcement activity.
One record contains information on a heretofore-unknown FCC “Violators File” maintained by the Enforcement Bureau, which includes information on every person or entity “who have been subjects of Federal Communications Commission (FCC) field enforcement actions (monitoring, inspection, and/or investigation) for violations of radio law, FCC Rules and Regulations, or International Treaties…and Licensees, applicants, and unlicensed persons…about whom there are questions of compliance with [U.S. communications law].”
Categories of records in the “Violators File” include “[i]nspection reports, complaints, monitoring reports, investigative cases, referral memos, correspondence, discrepancy notifications, warning notices, and forfeiture actions.” The Violator’s File is maintained both physically and electronically, “in file folders and stored in a secure area. Access to files is limited to approved personnel. The electronic records are maintained in computer databases, which are secured through controlled access and passwords. The databases are backed-up routinely.”
Most notably, none of the data in the Violator’s File is amended or removed for any reason “until a disposal schedule is approved by the National Archives and Records Administration (NARA),” which the document suggests has not yet taken place.
Yet none of the released documents gives the impression that the FCC thinks itself above the Fourth Amendment; in fact, this question itself is not directly addressed in the data unveiled. Thus the rhetorical battle will continue in the field, with field agents left to bluster that they have the power to search-at-will, with penalties for those who do not comply. On the other side, rights-conscious members of the public can claim (correctly, at least for now) that even the FCC must bow down to a higher authority.
The bottom line for unlicensed broadcasters is: the FCC does not have carte blanche to invade your space, regardless of whether or not you’re doing something that runs afoul of agency regulations. The FCC may retaliate later on in your case by citing any refusal to inspect as a factor in determining the size of any monetary penalty received. However, such punitive enforcement tactics have still not been adequately addressed by litigation, and the agency’s own enforcement statutes require it to adjust a monetary penalty downward upon the demonstration of a person or entity’s inability to pay.
Such “muscle” remains more a threat than an effective tool, much like the FCC’s overall enforcement activity.