Signifying what the industry trades call a “crackdown” and added “pressure” on unlicensed broadcasters, the FCC’s Enforcment Bureau has stepped up its issuance of warning-letters, primarily to pirate stations in New York and New Jersey. Of the 94 enforcement actions against unlicensed broadcasters this year, 52 of them have taken place in these two states. Enforcement activity also includes two Notices of Apparent Liability and seven Forfeiture Orders, for cases that originated in 2015-16. Overall, however, the pace of enforcement actions is running behind the totals of a year ago.
This is not necessarily an expansion of enforcement duties. NYC-based field agents especially are now doing what they call “follow-up investigations” – in a nutshell, agents now re-visit unlicensed stations they’ve already contacted. If they are still on the air, they issue yet another warning letter to the operator (or, in the case of one New Jersey-based pirate, to the owner of the property where the station is housed, who was not in on the first-round contact). “Follow-up investigations” typically occur within 1-3 months of initial contact with the offending station. But if stations aren’t fazed by the first FCC nastygram they get, what are the odds the second one will change their ways?
Perhaps this is some preparatory-work for the first deployment of the agency’s vaunted East Coast enforcement “Tiger Team” sometime this summer. At a Senate budget hearing on June 20, Commissioner Mike O’Rielly declared that the agency is “preparing to take a different tack” with regard to the “hooligans” that operate pirate stations, which he now claims are causing “immediate and lasting harm to existing legitimate broadcasters and the American public.” (On the last day of the month, Chairman Ajit Pai tweeted that unlicensed broadcasting is “a major FCC prority” and promised “aggressive action” against those who flaunt Section 301 of the Communications Act.)
At a House oversight hearing yesterday, Rep. Gus Bilirakis (R-FL) highlighted the recent closure of FCC field offices and asked Chairman Pai how he thought that affected the agency’s ability to enforce the broadcast license requirement. Pai replied that while he “had substantial disagreements” with the downsizing-plan, he acknowledges that pirate radio is a “problem all across the Eastern seaboard” and are working within their means to try and address it: “We want to make sure that we take every step we can to put pirates on notice that both the staff at the FCC headquarters and the field office enforcement staff are cops on the beat to guard against that problem.”
Commissioner Mike O’Rielly, for whom this topic is near and dear, gave his standard litany of things he’d like the FCC to do to put more pressure on pirates, including a new one: eliminating warnings altogether. However, some media policy observers doubt that this is likely to happen anytime soon (if ever).
At the June hearing, Commissioner Mignon Clyburn highlighted the woefully understaffed situation that the FCC finds itself in today. More than one-third of FCC staff report that they do not have “sufficient resources to get their job done.” Close to a quarter of the agency’s employees are “retirement-eligible,” and “124 employees have already departed the agency this year – some for retirement while others will leave for new job opportunities. During the three previous fiscal years, we lost a combined total of 441 employees.”
July tends to be a popular month for enforcement actions, so a maiden run of a “Tiger Team” in the near-term would make sense. It would also be a strategically beneficial to newly-appointed Enforcement Bureau chief Rosemary Harold. A journalist-turned-lawyer, Harold’s a partner in a big D.C. law firm with many large broadcast clients. She also previously served as legal advisor to former Republican FCC Commissioner Robert McDowell for most of last decade, so this is her second trip through the industry/regulatory revolving door.
The writing’s been on the wall for months now that the FCC would like to become more aggressive with regard to unlicensed broadcasting. This is part and parcel of a decades-long ideological war that Trumpsters and their allies in power are conducting against democratic norms more generally, emphasizing the re-regulation of our media environment to contextualize all communication as transactionable (and monetizable).
Any crackdown, however, will result in what the agency has historically called “pulse enforcement” – the flooding of a particular hot-spot with an interagency (possibly federal, state, and local) group of field agents and law enforcement officials to conduct high-profile raids and possibly arrests – as New York and New Jersey both have laws on the books that criminalize pirate radio at the state-level (though these statutes have been invoked fewer than a dozen times since they were first implemented in the last decade-plus). Pirate radio perp-walks will lead the local news, as the party line that “pirates are dangerous” floods the licensed airwaves; afterward, FCC officials and broadcast-industry lobbyists will pat themselves on the back for a job well-done.
If history is any indicator, these events may result in a temporary dimunition of the “problem,” but once the FCC’s “tiger team” and its posse of local helpers move on to the next problem du jour, stations will return and broadcast with relative impunity. What the FCC and its industry-constituents are engaging in now is akin to juicing on steroids to look bigger and stronger than they actually are, when diet and exercise (i.e., adequate funding, staffing, and a pragmatic policy-approach) are the only meaningful ways to address the issue. In the meantime, savvy operators should be taking steps now to prepare for and mitigate any fleeting hammer that falls.