FCC Getting Shady With Anti-Pirate Enforcement?

When it comes to pirate-hunting, the FCC’s off to a relatively sedate start in 2018. The total number of enforcement actions reported so far for January stands at 15, which is six more than were reported in 2017, but equal to the number reported in 2016, the final full year of previous (Democratic) chairman Tom Wheeler’s tenure. So far this month there have been eight actions, as opposed to 11 in February 2017 and 12 in February 2016.
Many of these cases originated last year. The most notable at present is the case of “Gerlens Cesar,” who was sent a Notice of Unlicensed Operation earlier this month for operating four pirate stations on two FM frequencies in Boston and its surrounding suburbs. Interestingly, a principal by the name of “Cesar Gerlens” has already run afoul of the FCC – having received multiple visits and warning-letters in the latter half of last year – some of which named additional collaborators – for operating unlicensed stations in the Boston area.
I e-mailed the chief of the FCC’s Enforcement Bureau, Rosemary Harold, to ask about this apparent discrepancy: had the agency mistakenly transposed the first and last names of the principal in this case, or are there two distinct individuals who just happen to share identical name-elements working in Boston? So far, no response, but also no correction from the agency. In any case, Cesar Gerlens/Gerlens Cesar seems a likely candiate for a negotiated forfeiture-settlement similar to the one worked out with a prolific pirate in Florida last moth, if/when the agency consolidates the information gleaned in this case.
Surprisingly, as of today there’s been no enforcement-activity reported of any kind in New York, which is quite strange considering that the state’s one of the three most active places for pirate broadcasts in the country and has been held up as an example of the “harms” that widespread unlicensed broadcasting might cause (none of which have ever been tangibly proven). However, the agency has moved against a passel of pirates in Colorado, after local media coverage raised the ire of FCC Commissioner Mike O’Rielly.
In the last week of January, field agents investigated and discovered three unlicensed FM stations in Boulder and surrounding towns, and issued warning-letters to them last week. One NOUO was addressed directly to the town of Ward, where “Way High Radio” has been operating on and off for the last twenty years.
According to the agency, its agents tracked the signal to a “a trailer parked next to the Town Hall. . .Public records list the Town of Ward as the owner of this property.” So, as has become a fairly standard practice in the last couple of years, the agency’s attempting to make the property-owner liable for the illicit broadcasts, as opposed to doing the heavy lifting of tracking down the station-operators themselves. To my knowledge, this is the first time that the FCC has threatened a local government with punishment in an unlicensed broadcast case.
A curious post on Reddit was recently brought to my attention that alleges the agency is attempting to coerce suspected pirate station operators into consenting to searches of their property. I have noticed this year that, in addition to sending Notices of Unlicensed Operation by certified mail, the agency also now sends them via UPS. Both mechanisms require a signature upon receipt…but according to “RockyMtnSurf,” the UPS correspondence includes an “End User License Agreement (EULA). . .which is worded to compel the resident to allow FCC inspection of the unlicensed equipment.”
I’ve asked to see the text of this agreement and am still waiting. As the Reddit poster notes, a shrink wrap-style agreement like this is at best legally dubious, and at worst an unconstitutional attempt to circumvent Fourth Amendment protections against unwarranted search and seizure. It would also seem to suggest that UPS is working with the FCC on these cases, if it has allowed the agency to amend the signature-protocol for its deliveries. (This would also be a first.)
Without actual evidence, though, it’s all hearsay. That said, given that the FCC has already gotten quite clever with denying/stymying Freedom of Information Act requests and strategically releases information nowadays only if it benefits its leaders’ political aims, suspicion is definitely warranted. We must remain vigilant and watch whether or not the agency actually begins reducing the amount of information it provides publicly regarding its low-level war on pirate radio. Opacity always benefits the oppressor.

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