The rhetoric’s heated up, for sure. Commissioner Mike O’Rielly, who’s made cracking down on unlicensed stations one of his signature issues, calls them infectious squatters, casting the phenomenon as a cancer preparing to metastisize. And he’s gotten much more critical about his own agency’s handling of the problem: when the FCC proposed to fine a Kentucky couple more than $144,000 last month for operating a low-power TV station for nearly twenty years after its original license had expired, he likened FCC enforcement to “a sometimes annoying, sometimes sleepy, but ultimately harmless Chihuahua when it came to protecting broadcast spectrum licenses.”

That makes “paper tiger” sound almost tame.

Industry trade-press has taken the cue and upped their coverage of the FCC’s anti-pirate broadcast enforcement. Radio World trumpets warning lettters, fines, and threats of fines issued by the Enforcement Bureau as if they’re landing knockout blows. It even got Chairman Ajit Pai to concede in a March interview that pirates are a “serious concern.”

Inside Radio last month published a three-part series on pirate broadcasting, laden with gems of intelligence on the current and recent-past state of affairs. For example, the Enforcement Bureau estimates that it spends about “20% of its personnel’s activities” on pirate broadcasting and “insiders” say that “more meaningful shifts” in the Bureau’s enforcement policies and protocols are expected “in the coming months.” The word has already gone out from the Commissioners to field staff to make pirate-hunting a higher priority, and state broadcasters’ associations in typical hot-spots tell IR they feel a change in the wind.

Apparently backstopping them are broadcast engineers who “spend several 18-hour days in the car chasing these guys down” to provide information to FCC agents; they compare themselves to storm-chasers, of all people.

But the fact of the matter is that the FCC’s actual, tangible ability to “police” the airwaves remains weak. According to Obama-era Enforcement Bureau chief Travis LeBlanc, agency policy has simply “not been effective”; he also noted that the prevalence of pirate stations in “ethnic and minority communities” would seem to suggest that “there is a social or public policy problem that is causing that. These are communities that want and need a voice in broadcasting and those needs aren’t being served.”

Somewhat conveniently, now that LeBlanc doesn’t have the power to influence policy anymore, he seems open to the notion of re-thinking the entire enforcement paradigm away from outright prohibition toward harm reduction; recalling a troublesome enforcement action in Boston, he wondered aloud if “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 Inside Radio series claims that “there are whispers that the FCC may reopen some field offices or increase staffing at others,” but there’s absolutely no evidence to back that up. LeBlanc predicts enforcement in the near-term will “look very much like it did before,” which is mostly symbolic. So far, the numbers confirm this, significantly cooling the hot air coming from the industry and Commissioners themselves.

FCC Anti-Pirate Enforcement Activity, January-May 2017The most recent update to our Enforcement Action Database now documents FCC activity against unlicensed radio stations in seven states during the first five months of this year, for a total of 46 enforcement actions against perhaps 20-odd stations. This number is lower than in 2014 (65), 2015 (49), and 2016 (68). Remember that the FCC often conducts multiple enforcement actions against the same station over the course of months or years – such as the three separate warning letters the Enforcement Bureau generated last month for a single station in New Jersey.

The Bureau’s also been issuing 1-2 Notices of Apparent Liability or Forfeiture Orders against pirate operators each month, typically in the $20-25,000 range. The frequency of these fines or threats of fines is up from the prior few years – but the question is always one of collection. Complicating matters is the fact that to press collection, the FCC must have support from the Department of Justice to pursue a civil suit against pirate broadcasters.

According to LeBlanc, most U.S. Attorneys’ offices have a “monetary floor” below which they won’t even pursue such cases, and with FCC fines against pirates coming in at $25K or less, “in legal terms I’d say we’re almost judgement-proof.” He estimated to Inside Radio that not much more than 10% of such anti-pirate penalties are even collected, “and many of these individuals don’t have the money to pay it.” The sheer ineffectiveness of this tactic is most notable in an April $20K NAL against a man in Florida…who the FCC admits near the end of its prose to having first come to the agency’s attention in 2010.

FCC FTE Chart, 1983-2018That’s on the money-demand side; regarding supply, the FCC’s 2018 budget proposal actually seeks to cut more than 100 full-time employees from the agency’s payroll, of which 15 of those will come from the Enforcement Bureau itself. Of those left in the Bureau, some 57% will be dedicated to the agency’s strategic goal of “protecting consumers and public safety,” but the budget estimate gets no more granular than that – though it does provide a graph (at right, click for larger version) which clearly shows that, overall, the agency’s at its lowest staffing-level in well more than 30 years.

Furtheremore, there’s no fiscal sign that the FCC plans to re-open shuttered field offices, as its FY 18 estimate slashes “rent, communications, and utilities” expenses in the Enforcement Bureau by more than $600,000, and one wonders how those two promised “tiger teams” will fare given that the FCC’s cut the Bureau’s travel budget to just $280,000 for the entire year. The Bureau is, however, asking for a two million-dollar shot in the arm for equipment, which presumes that the thirty or so field agents left to “handle” this mess will at least have shiny, current gear to work with.

Just because the industry’s playing an intimate game of footsie with the FCC regarding pirate radio doesn’t change the structural and resource constraints that hamstring the agency from doing anything meaningful on this issue. Giving field agents the authority to confiscate gear from “common areas,” such as antennas from roofs, is nothing more than sanctioned vandalism, which already has been tried (and failed) in the U.K. context.

Proposals to allow the FCC to punish those who “aid and abet” pirate broadcasting are similarly meaningless without adequate muscle to make those punishments stick – and none of this addresses the “social or public policy problem,” in LeBlanc’s belatedly wise words, which lies behind why pirate radio even exists in the first place. That problem, in simple terms, is an utter lack of democratic access to the airwaves, and that’s a feature, not a bug, of the contemporary regulatory paradigm itself.