In some markets in America, pirate radio stations swarm the airwaves, delivering 150-watt stings to licensed operators. While they may not bring down a station, they do result in a rash of interference complaints from broadcasters to the Federal Communications Commission. The Enforcement Bureau estimates 20% of its personnel’s activities are related to combating pirate radio; so far this year, field agents have issued 20 official warnings according to the FCC.
While new FCC chief Ajit Pai has already won praise from broadcasters for his efforts on AM revitalization among other moves, he may again score with the industry on the issue of unlicensed operators. “Chairman Pai has made clear that confronting pirate radio is an enforcement priority for the agency,” an FCC spokesman said in an email. While some immediate tweaks have already been taken according to insiders, they say the agency is likely to make more meaningful shifts in the coming months. “The chairman has asked the Bureau to review its policies related to pirate radio and work to find ways to further bolster the Commission’s capabilities on this front,” the FCC spokesman said, adding, “The chairman and Bureau leadership have also worked closely with the FCC field office staff to reaffirm that essential part of the Commission’s enforcement mission.”
FCC commissioner Michael O’Rielly has put combating pirates high on his priority list during the past several years. “We can no longer afford to rest,” he said two weeks ago after the FCC issued a $144,344 fine against a pirate TV station that had been on the air for 20 years. An incredulous O’Rielly said the case highlighted the agency’s “toothless” approach toward broadcast pirates of all stripes. “No longer a fierce watchdog, the Commission had been reduced to a sometimes annoying, sometimes sleepy, but ultimately harmless Chihuahua when it came to protecting broadcast spectrum licenses,” he said. Further boosting the signals from the Portals building that a new paradigm is in the works, O’Rielly added, “All pirate operators should be put on notice that we can and we will turn that situation around.”
O’Rielly earlier called pirates “squatters [that] are infecting the radio band” during a speech to the Hispanic Radio Conference in March. While in South Florida, O’Rielly also visited the FCC’s Miami field office “to ring the figurative fire alarm” on the issue, admitting to broadcasters that the failure to address the problem has undermined the FCC’s overall credibility. “I walked away with renewed belief that the Miami team was up to the task, but they are also on notice that I expect to see this situation addressed quickly and sufficiently,” he said.
A New Anti-Pirate Wind Blows
The head of the state associations in pirate-plagued states universally say they’ve already felt shifting enforcement winds in recent months. “We’ve seen a real significant change in attitude at the FCC. There is now a real desire to try to eradicate this problem,” New York State Broadcasters Association president David Donovan said. “What I see is a determination by the Commission to go after this issue, which we have not seen for decades.”
“They are definitely more interested in stopping pirate radio,” Florida Association of Broadcasters president Pat Roberts agreed. “It appears the hoops that the local field staff has to go through to get permission to go after pirates have been substantially modified or reduced.” He believes that helped cut the response time on shutting down a pirate station that was causing headaches for several Miami stations to less than two months—a short time line in pirate-battle terms. “I would say it’s a priority but it’s a staffing issue,” Roberts said. “The problem is they’ve cut back all the field offices, so there is fewer FCC staff available to help.” As a result there are likely as many 30 pirates operating in South Florida according to Roberts.
NYSBA has conducted a pirate census during the past four years, and each time it has turned up roughly 100 pirates operating in the New York metro area. One hasn’t been conducted this year, but Donovan doesn’t expect the results to be much different. “Our estimates are there are hundreds of pirates in New York City alone and that number will increase dramatically during the summer,” he predicted.
The Massachusetts Broadcasters Association is using a similar tactic. Last month MBA president Jordan Walton announced the trade group was creating a pirate radio database to fully understand the scope of the problem and help the FCC track down unlicensed stations.
New Jersey Broadcasters Association president Paul Rotella says there are “dozens and dozens” of pirates in his state. “I applaud what the FCC is now doing in terms of looking at pirates more seriously,” he said. “In the end it is the FCC’s primary mission to keep the airwaves clear and regulated to the extent where stations don’t interfere with each other so that they can serve the public.”
Rotella said for most broadcasters there’s more than just the annoyance of interference at the heart of this issue. Instead, he puts it squarely in the public safety category with pirates potentially keeping listeners from accessing emergency information or Amber Alerts on licensed stations. “They may have thought the pirate stations were serving the community but in the big picture they are doing a disservice to the community because interfering with the EAS alone is not only objectionable but the height of stupidity,” Rotella said. He also points to several other dangers including the potential that unregulated frequencies can also interfere with the FAA’s airline traffic channels.
O’Rielly is pushing Congress to take the required legislative steps to not only increase pirate radio fines but also give the FCC the authority to seize their equipment. O’Rielly has said such “limited and targeted” authority wouldn’t allow field agents to kick in doors, but they would be able to seize antennas and other equipment in publicly accessible common areas such as rooftops. “More tools in the tool box would come in handy as we implement a reenergized enforcement approach,” he said last week.
While getting Congress to pass legislation is always a lengthy process, Florida and New Jersey have already made operating a pirate station a felony under state law, while it’s a criminal misdemeanor in New York. “It can make a difference because the criminal mechanisms can work faster and swifter than the FCC’s administrative-based enforcement,” Donovan said.
Yet the legal impact can run up against the real-world realities of pirate hunting. Rotella says that local law enforcement agencies don’t have the technical know-how to triangulate pirate signals so they still rely on the legwork of FCC field agents to hunt down the stations. And Donovan says it’s the FCC that determines whether a pirate is causing interference or even operating without an authorization. “Those decisions are uniquely in the hands of the FCC,” he added.
The Paper Tiger
That has frequently been at issue in the overall pirate radio fight. Brooklyn College assistant professor John Anderson, who is director of the school’s Journalism and Media Studies program, has been tracking pirate radio for more than two decades. His research shows ever since FCC enforcement peaked in 2010 the general trend has been away from policing pirates. “You’ll see occasional spurts and you may have some spurts year to year, but for most of this decade it’s been on the downward trajectory,” he said.
Nevertheless Anderson recorded what he called a “surprising uptick” in enforcement last year with 201 total enforcement actions logged in 2016 with $155,000 proposed fines against pirates. That was the most robust year for enforcement since 2014 and it followed a year that brought some of the most “lethargic” enforcement rates seen in a decade according Anderson. But a deeper analysis of the data also showed the FCC made contact with fewer unlicensed operators in 2016 than in years past with action taken in just nine states compared to 20 states covered in 2014. The database only tracks activity that is known to the FCC, which he believes represents just a fraction of the unlicensed radio activity taking place.
“The FCC is a paper tiger,” Anderson said. “They’ve always been to a certain degree but in the last five to ten years, due to austerity, retirement of field agents and the inability to replace them, the result is we’re at a low level of enforcement. For all the rhetoric, you still have to have the resources to conduct the enforcement activities and that doesn’t seem to be forthcoming at all.” The FCC has not yet released any data to show if the trend line has moved since Pai became the agency’s chief, but Anderson doesn’t expect any dramatic changes. “Even if Pai wants to do something about it he has to turn to a decimated field staff that is simply incapable of handling the problem given the tools that they have,” he said.
FCC Rethinks Pirate Enforcement
Limited resources and a poor track record are part of why Travis LeBlanc, Enforcement Bureau chief during the final two years of the Obama administration, believes the FCC is using the wrong policy to police modern airwaves. “The enforcement policy has not been effective on pirate radio,” LeBlanc conceded in a conversation with Inside Radio. At the root of the problem according to LeBlanc is that the current regime used was created for regulated businesses, not unregulated entities and individuals. So he set about changing how the FCC goes after unlicensed stations.
“The thought was that as soon as we started a case we were going to bring that case to conclusion,” LeBlanc explained. In the past when the FCC issued a warning or proposed a fine years would go by before any action was taken, if any. “So we changed that. We knew that if we were to bring a case to a conclusion on the back end, we had to prioritize our targets on the front end so that we’d be able to go all the way through to a conclusion,” LeBlanc said. That meant the FCC began putting pirates that were actively causing interference with public safety at the top of its list. It also began to crack down on any pirates who were repeat offenders or those who were accepting advertising dollars. “The FCC didn’t turn a blind eye,” he insisted.
With stark parallels to how many states are rethinking enforcement of drug laws, LeBlanc said as a former prosecutor it wasn’t lost on him that pirate actions disproportionately have impacted ethnic and minority communities. “When you see the law imposed in a manner that almost exclusively impacts those communities, you have to look back and say is there a social or public policy problem that is causing that,” he said. “These are communities that want and need a voice in broadcasting and those needs aren’t being served.”
That thought lingers with LeBlanc as he looks back on the fine issued by the FCC against a Boston pirate, which had the support of the city’s mayor, Massachusetts’ governor, and the state’s congressional delegation. “You can’t help but wonder whether the reflexive policy of just trying to take any station off the air simply because it’s unauthorized is the best use of government resources and makes communities better or safer.”
The Obama-era policy was highly frustrating to broadcasters, however, who’ve viewed anything but a blanket targeting of every pirate as a shortcoming by the FCC at best or at worst, the agency’s belief that pirates are nothing more than another low-power FM service. Rob Taylor, general manager of the Old Bridge, NJ-based “The Bridge” religious network, thinks the FCC’s recent shifts may already be too late. “The damage is done,” he said. “The guys who are trained or who are proactive and willing to go out and do this are no longer in those jobs.”
But LeBlanc thinks many broadcasters are too focused simply on getting more resources into the current system. “I was trying to think about how to rearrange the system,” he said, pointing out during his tenure the FCC asked Congress for the authority to go after landlords who allow pirates to operate as well as advertisers knowingly buying commercial time from an unlicensed station. He also thinks that if pirate radio becomes a criminal offense at the federal level it could mean jail time as an option to the rarely collected monetary penalties. “I advanced ideas that are in many ways tougher but I also think they’re smarter and better reflect the threat environment and are better ultimately at deterring pirate radio than the current tools that we have,” LeBlanc said.
Show Me The (Pirate’s) Money
Between Jan. 2003 and March 2017, the FCC issued 1,561 official warning notices to alleged pirates across 46 states with Arkansas, South Carolina, Vermont and West Virginia the only states untouched by the problem. Just one in ten of those warnings were escalated to the next step. The FCC says it proposed $2.15 million in fines against 168 alleged pirates. Yet of that number the Commission ultimately ordered just 93 pirates to pay up a combined $1.04 million. In order words, just 6% of the warning letters ultimately translated to formal fines. Also of note nearly half of the fines were to pirates in one state: Florida.
The FCC doesn’t release any statistics on how many fines are actually collected but insiders concede the number is small. The Office of Inspector General last audited the Commission’s Civil Monetary Penalty Program in 2000 and it concluded less than one-third of forfeitures are collected in a system that was rife with “erroneous data and deficiencies.” LeBlanc said the FCC has a “great collection rate” among companies that it regulates, but when it comes to non-regulated individuals, which is nearly every single pirate, the rate is quite low. “I’d be surprised if it is more than 10% and many of these individuals don’t have the money to pay it,” he said.
It’s not that the FCC doesn’t try, but it needs the legal firepower of the Department of Justice to pursue a claim. LeBlanc, himself a DOJ veteran, says inside some U.S. attorney offices there’s a monetary floor beneath which they’ll not take a case. With a typical pirate radio fine of $25,000 or less it’s difficult to meet that threshold when prosecutors are going after multimillion-dollar cases. “In legal terms we’d say they’re almost judgment-proof,” LeBlanc said.
More Warnings Expected, But Will It Matter?
While there are whispers that the FCC may reopen some field offices or increase staffing at others, there is so far no confirmation from the agency. The cost-cutting consolidation of the Enforcement Bureau into 14 field offices nationwide includes those in newly formed “tiger teams” that are deployed nationwide. With about three-dozen field agents on the job, down from about 60 prior to the downsizing, it only adds to a sense that the FCC doesn’t care about the problem, broadcasters say. “That is a symptom reflecting the policy. They didn’t view it as worthwhile,” NJ Broadcasting’s Rotella said. “We need to have the field offices open and have them policing the airwaves. The legitimate stations want that.”
The NYSBA’s Donovan is also hopeful the FCC will realize too few offices and field agents remain on the job. “I think there is a realization by chairman Pai that the past administration has left him short-staffed and the question is how can they can make the Enforcement Bureau more efficient and try to remedy some of those situations,” he said.
Now looking back to the FCC from the outside, LeBlanc suspects there is a lot of pressure on the Enforcement Bureau to “just do more” under the agency’s new leadership. “I have a feeling it’s going to look very much like it did before,” he predicted, adding, “But consider how effective is the mere fact that you can issue a Notice of Apparent Liability to a lot of pirates, but they all stay on the air.”
For all the debate, pirate radio is a decades-old problem and not one unique to America. Anderson questions whether the FCC will ever be able to eradicate the problem, noting it’s getting easier to fire up a station. “There has been an uptick in pirate numbers and a lot of that has been simply to the ease and access of the technology,” he said. With little effort, anyone can buy a 150-watt transmitter off eBay or Amazon and the FCC doesn’t have the ability to police online merchants to make sure they’re not selling gear they shouldn’t. Laptops costing a few hundred dollars loaded with music and scheduling software also make it easier for people to actually sign on stations that sound a lot less pirate-like that ever before. Even if the FCC seizes the equipment, the cost to start over isn’t prohibitive for most.
With fine collection rates low and the likelihood of field agents busting down pirate’s doors even lower, Anderson agrees a larger reassessment of the FCC’s policy is overdue: “Until the FCC enforcement process is reconfigured into something that actually has deterrent value then there is little the FCC can do regardless of which party is in power and what their policy priorities are.”
PART TWO: Stations Must Play ‘Pirate Hunter’