With little fanfare, the FCC has replied to the Congressional delegations of New York and New Jersey, who are demanding that the agency do something about the proliferation of unlicenesed broadcasters in the New York metropolitan area. At last count, at least three dozen stations are operating in the borough of Brooklyn alone; if you extrapolate that across the five boroughs and add in cities on the New Jersey side of the Hudson River, it’s not inconceivable to estimate that as many as 100 pirate stations may be on the air here.

The rising tide of unlicensed broadcast activity in the NYC area — a trend that is several years old now — is exacerbated by the FCC’s utter lack of resources to deal with the issue. Just last month the agency announced a major restructuring of its field enforcement resources, which will result in a net diminution of boots on the ground across the country. In the NYC metroplex, the number of field agents is being increased by one, from four to five people. Although they will be ostensibly be backed up by one of two flying squads of roving agents who will travel the country to enforcement hot-spots (this includes dealing with many issues other than unlicensed broadcasting), it remains to be seen whether this will meaningfully improve the FCC’s overall enforcement abilities.

Further complicating things is the lack of support the FCC has from the other government agencies it needs to give the higher degrees of its enforcement efforts some teeth. For example, in order for the FCC to make its five-figure fines against pirate broadcasters stick, it needs the support of the Department of Justice, whose attorneys have the power to sue pirates as a step toward collecting the fines. Problem is, the U.S. Attorneys in New York are already overworked: when it comes to taking pirate radio cases, they won’t prosecute forfeitures unless they’re for $20,000 or more. (Actually collecting after a successful prosecution is another story.)

All of this has led licensed broadcasters to launch a lobbying effort in hopes of making anti-pirate enforcement more of a priority. In late June, Commissioner Mike O’Rielly convened a “working group” including the National Association of Broadcasters, New York State Broadcasters Association, New Jersey Broadcasters Association, National Public Radio, and others to develop new proposals for tackling pirates in NYC.

On July 27th, FCC Chairman Tom Wheeler sent letters to New York and New Jersey’s members of Congress formally replying to their concerns. A copy of the letter sent to my own Representative is embedded below. In simple terms, the response was, “We hear you but there’s little we can do to help you.” Incidentally, the letters were not made public by the agency until mid-Ausgust, and the industry trades didn’t publicize their existence until just last week.

According to the letter, the FCC “has issued more than 100 pirate radio enforcement actions” this year — a claim not borne out by the available data, which show about half as much activity. Wheeler notes that these actions are “resource intensive,” and that the pirate problem is a “persistent” one. Unlicensed broadcast enforcement “requires many hours of work by multiple EB field agents, often working overnight and on weekends in neighborhoods that require close coordination with local law enforcement officials to ensure staff safety” — this is curiously racist code for, “we don’t feel safe being around brown people,” which signifies a deep misunderstanding of contemporary NYC pirate stations.

However, Wheeler bravely admits that austerity politics focuses the FCC’s enforcement efforts on problems that pose “an imminent threat to public safety or directly harming large numbers of consumers,” and pirate radio simply does not fit that bill. In a footnote, the agency diplomatically demolishes one of NAB/NYSBA/NJBA/NPR’s more egregious talking-points — that pirates interfere with the Emergency Alert System: “While it is theoretically possible” that pirates might “prevent listeners from hearing [EAS messages] from licensed broadcasters, we are unaware of any complaints alleging such interference.”

“Given the facts,” concludes Chairman Wheeler, “it is clear that the pirate radio problem cannot be solved by enforcement alone” (emphasis mine). He announces the creation of an “inter-bureau task force” to “develop policy and enforcement options to address the issue,” and makes four distinct suggestions (quoted in their entirety):

• Revision of the Communications Act to provide for “aiding and abetting” liability for landlords and other parties that provide material support to pirate operators;
• Identification of trade associations and law enforcement entities to educate landlords, advertisers and others about the unlawful nature of pirate operations and develop best practices;
• Release of a policy statement/enforcement advisory that could be shared with these groups and help channel state, local, and federal resources on pirates; and
• Additional FCC, state, and local enforcement options for reducing pirate activities.

Where things go from here isn’t clear, but I’m watching for two developments before the end of the year. The first is a sweep of the New York metropolitan area by the Enforcement Bureau’s new “tiger teams,” most likely in close coordination with local law enforcement agencies, especially since both New York and New Jersey have their own anti-pirate radio laws on the books. The FCC did similar sweeps back in 1997-98 to demonstrate its resolve in the face of the microradio movement, though the backlash was not kind to the FCC and broadcast industry.

Just last week, the FCC announced a new protocol for collecting, monitoring, and resolving interference complaints of any sort. The agency plans to roll out an online portal where complainants will be asked to provide as much information as they can about the interference they’re experiencing and will allow folks to track the FCC’s work. The agency is promising to acknowledge complaints within one to five days, and will also provide an escalation process for complainants to deal directly with the field office(s) working their case. This is not really all that new: the FCC’s been taking online complaints about pirate stations since 2007.

A sweep of the New York metropolitan area will grease the squeaky wheel and is likely to further industry propaganda that unlicensed broadcasting is tangibly dangerous. NYC-area pirate stations serious about their existence should start preparing now for any coming crackdown — there is a lot that can be done to avoid and mitigate its effects.

The second development is the drafting of legislation that seeks to advance some of Wheeler’s suggestions. Interestingly, all four of them seek to put the onus for future outreach and enforcement efforts on the backs of third parties, both public and private. The stunning ignorance Congress regularly demonstrates regarding issues of media policy make a legislative campaign a straightfoward process: overhype the problem and sell the solution as something that members can take credit for being “tough on crime.” Besides, who will lobby for the pirates on Capitol Hill?

Wheeler’s letter represents perhaps the most important document the FCC’s produced on pirate broadcasting in several decades. In it, the agency admits that while it may have the law on its side, it utterly lacks the long arm to enforce it, and does not see this state of affairs changing any time soon. This is a historical conundrum the agency has faced since its inception as the Federal Radio Commission in 1927, and it throws into stark relief the agency’s 88 years of mostly fruitless struggle with this particular issue.

At the same time, it also suggests that the FCC is willing to wholly rethink its approach to unlicensed broadcasting. Considering the strong decalaration that enforcement alone will not fix things, it remains to be seen just what other options might be politically feasible to consider. Note that the litmus test of political feasibility will most likely foreclose some potentially effective options, but the FCC’s made it abundantly clear that it won’t be the one throwing up roadblocks.

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