Keeping in line with the Trump administration’s penchant for dehumanization, FCC Commissioner Mike O’Rielly used some of his time testifying in front of the U.S. Senate Commerce Committee last week to hype his signature issue: going to war on unlicensed broadcasting.
Calling them “squatters” who “are infecting the radio band,” O’Rielly whipped out all the now-familiar canards: that pirate radio “stations” (his quotes, not mine) somehow harm “consumer services” (whatever those might be), “emergency communications” (lacking any meaningful evidence that this is a tangible problem), and “the financial stability of licensed radio stations” (nah, that’s Wall Street’s fault). He references a claim from the Massachusetts Broadcasting Association that it’s identified some two dozen pirate stations “operating in one of their markets” (most likely the Boston metro area) and the numbers are growing.
Surprisingly, O’Rielly thinks the recently-downsized field staff of the Enforcement Bureau – of which there are now fewer than one agent per state – backstopped by “tiger teams” can do the job. Though he does think the FCC could benefit from some new “limited and targeted statutory authority” to supplement their work. Specifically, he wants FCC authority to “seize equipment found in common areas,” increase fine amounts, and “some ability to impose penalties on those that directly and intentionally aid pirate stations.”
There are several problems with O’Rielly’s suggestions. The first is that the FCC already wipes sites clean of any and all equipment that it believes may be utilized in connection with a pirate radio broadcast. Seizure warrants issued for station-raids clearly target “any and all radio station transmissiom equipment, radio frequency power amplifiers, radio frequency test equipment, and any other equiment associated with or used in connection with [pirate station frequency] at [location]” (emphasis mine). In past raids, this has included music collections, televisions, and even stuff like answering machines and potted plants. Seems pretty clear that O’Rielly doesn’t have a good grasp on what authority the agency already has in this regard.
Similarly, there’s the notion that increased fines will be a suitable deterrence to unlicensed broadcasting. Current statutory authority allows the FCC to issue monetary forfeitures of up to $75,000 per violation; the typical benchmark-fine of $10-20,000 is a wholly discretionary practice of the Enforcement Bureau. So, if the agency already has the power to get tougher in this regard, why doesn’t it utilize it? It probably has something to do with extant FCC practices that O’Rielly (again) hasn’t bothered to fully comprehend.
Federal regulations in this area also contain a provision that, if an unlicensed broadcaster can prove that an FCC forfeiture is materially untenable, the FCC can reduce or cancel the fine. All it takes is three years’ worth of tax returns demonstrating poverty, and with that a $10k fine can be cut in half or even more.
Of course, collection is another matter: if an unlicensed broadcaster fails to pay up, the FCC must then engage the service of the Department of Justice to file a civil suit to compel payment. It’s been nearly two decades since the agency evaluated its collection-efforts…but back then only 25% of all forfeitures issued (not just those involving unlicensed broadcasting) were actually paid.
In simple terms, there’s no money in busting pirates given the time and labor involved. It’s a return-on-investment issue: does the DoJ actually want to expend the time and resources to chase a case that results in a net loss for the taxpayer? Even with his economic blinders, you’d think O’Rielly would understand this, especially since he’s so hot to trot to apply cost-benefit analyses to the FCC’s operations.
O’Rielly’s last recommendation is something he’s been harping on for more than a year now. There’s already legislation being drafted in the House of Representatives that would potentially penalize anyone or anything that “aids and abets” the act of unlicesned broadcasting. No formal bill’s actually been introduced, but at the very least O’Rielly’s laying the groundwork for companion legislation in the Senate…but as of yet, there’s no Senator who’s been willing to pick up that cudgel, and nobody asked any pirate-specific questions of O’Rielly at the hearing itself.
This hunger to bust on pirate radio is actually at odds with the new administration’s stated goal of “deconstructing the administrative state” – in plain language, that means crippling federal agencies to the point where they become so dysfunctional as to compel their dissolution. How can O’Rielly clamor for more regulation in this context when the prevailing political winds are blowing so hard in the opposite direction? At best, in the grand scheme of things it’ll take months if not years before the FCC may find itself in a position to actually attempt a crackdown on unlicensed broadcasting, but this shouldn’t prevent those engaged in the phenomenon from taking preemptive measures to counter any such attacks.
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