There are still a few pirate radio enforcement-cases from 2017 that the FCC has yet to release, but by and large the numbers from last year are in and they most definitely show an uptick in the number of enforcement actions against unlicensed broadcasters. As of today, there were 383 enforcement-actions across 18 states, compared to 207 actions in 2016 covering just nine states. For the second year running, Florida tops the list of states with the most anti-pirate enforcement, followed by Massachusetts and New York.

FCC Anti-Pirate Enforcement Actions Enforcement Actions by Year, 1997-20182017 ranks as the fifth-busiest year for enforcement activity in the 20-year history of the Enforcement Action Database, eclipsed only by a tear the FCC’s Enforcement Bureau went on during the end of President Bush II’s second term and Obama’s first term, when a proposed expansion of LPFM was being debated. Of the activity logged last year, the vast majority were station-visits (201, or 52%) or Notices of Unlicensed Operation (aka warning letters, 168, or 44%). The remaining 4% of enforcement actions included Notices of Apparent Liability (aka pre-fines, of which there were four) and Forfeiture Orders (nine).

In 2016, the FCC’s Enforcement Bureau issued nine NALs and five Forfeiture Orders, so on balance there’s no real movement or improvement in the agency’s escalation-protocol beyond initial contact(s).

One massive NAL, for more than $144,000, was issued in September to a trio of pirates in Florida who combined their operations after more than a decade’s worth of cat-and-mouse with both federal and state authorities. But surprisingly, the FCC has yet to formalize this as an official Foreiture Order, a process which often seems to take several months. Thus when this fine is eventually issued it will skew the 2018 data.

Since the agency likes to put everything in economic terms, I compute a per-action revenue figure every year based on the total dollar-amount of forfeitures issued divided by the total number of enforcement-actions. That number for 2017 works out to $415 generated for every enforcement-action, which is just $102 more than was generated in 2016. (Of course, this presumes that the agency fully collects on each fine it issues, which clearly does not happen, so take that number with a grain of salt.) On balance, the FCC’s anti-pirate crusade remains a huge net loser for the agency in a ROI sense.

One thing that has most definitely inflated enforcement-stats in 2017 are the frequency of repeated contacts, and some of the information gleaned from those documents suggest that some unlicensed broadcasters are operating with increasing levels of sophistication. It was not uncommon in 2017 for field agents to make multiple visits and issue multiple warning-letters to pirates – some of whom have been on the agency’s radar for years.

The narrative in September’s mega-NAL revealed that field agents do a lot of sleuthing online (primarily for property/business registration records and social media presence). Sometimes this results in more traditional stats-inflation, like the New Jersey station visited last month and warned this month, for which three NOUOs were issued: one to the alleged station operator, and two to the finance and management companies behind the property from which the station operated. Field agents in New York even sent a nastygram last month to the superintendent of a Brooklyn multi-unit apartment building, since they were apparently unable to narrow down which tenant was responsible for the illicit FM signal.

Then there’s the case of Cesar Gerlens, a Boston-area unlicensed broadcaster who received a NOUO dated December 22 alleging he’s the man behind three distinct stations operating in three different Boston neighborhoods. His case(s) involved 11 separate enforcement-actions throughout last year, beginning in August, resulting in nine station-visits and two NOUOs. Pre-December contacts also suggested that, like the high-profile investigation in Florida, Gerlens is not doing this alone, with at least two other principals identified as being involved with “his” stations. It’s not yet clear why the Enforcement Bureau has focued on Gerlens alone in the latest NOUO; this presumes another detective novel-like NAL is forthcoming this year about these operations.

But what good is this doing for the purposes of deterrent value? The numbers suggest not much, as an increase in enforcement activity not only indicates that the FCC may have made pirate-hunting a higher priority, but also that the number of pirate stations themeselves has remained relatively stable, if not grown. Unlicensed broadcasting is most definitely a pervasive and nationwide phenomenon.

This is not stopping FCC officials from trumpeting their efforts to grapple with it. Last month, Inside Radio published a Q&A with Enforement Bureau chief Rosemary Harold. A long-time revolving-door FCC employee, who jumped from stints at the agency to positions in private law firms who lobby the agency, and back again, Harold was somewhat measured in her description of the agency’s anti-pirate enforcement efforts.

In addition to more frequently publicizing “lower-level citations” like NOUOs, Harold admits that the enforcement-protocol is “more involved procedurally than it would be if a licensed broadcaster was being investigated” for violating an FCC rule. “That is kind of ironic in the case of pirate radio operators, but there it is,” she said.

She also confirms that field agents are issuing “at least two, maybe more” warning-notices before “we start to crank up in what could result in either seizure of equipment or forfeiture. So for every pirate radio operator, we probably have now at least three or four, if not more, reportable actions before we start an initiative to shut them down.” Why so many warnings must be issued before escalation isn’t clear: does she expect U.S. Attorney’s offices will take such forfeiture-collection cases more seriously once they see the amount of work FCC field agents are putting into them? There is no statutory reason for such repetition.

Harold also “can’t say there isn’t pirate activity in lots of other places,” but enforcement efforts are most definitely being concentrated in the NYC metropolitan area, south Florida, and Boston as “[t]hat’s where complaints seem to be heaviest and where we find the most active pirates.” In total, Harold estimates that “less than 50 people” are working pirate radio cases across the country out of 13 field offices, but it’s important to remember that these folks “also have other things on their plates.”

Where are the vaunted “Tiger Teams”? Two ostensibly rapid-response squads have been stationed in Maryland and Colorado, under the auspices of former FCC Chair Tom Wheeler, to backstop the work of other field-agents after their ranks were downsized in 2015-16 and several field offices were closed. There’s no indication that these teams have deployed en masse yet in a pulse-style enforement effort for which the agency was famous a couple of decades ago, but Harold does admit that individual agents “are flying around from one place to another more often to back up their colleagues in a different location. . . .So for example, in doing enforcement in South Florida, there have been times when people have flown-in from Dallas or the Denver office.”

Ultimately, Harold sees enforcing the broadcast-license requirement as tantamount to enforcing speed limits: “There are always going to be people who exceed the speed limit. That doesn’t mean you don’t enforce the law – you do – in the hopes that it keeps more people from exceeding the speed limit. And that it catches a few bad actors that might otherwise cause significant problems down the road. . .

“For us, it’s the same thing. I’m not going to tell you that we are going to be able to keep every pirate radio station off the air. But just as some of them have been persistent, we are going to be persistent as well.” On balance, this is a fairly pragmatic approach to the enforcement job Harold inherited, though the analogy breaks down on the fact that nearly everyone who drives speeds to some degree, and there’s no gradient to the unlicensed broadcasting game; the penalty of a speeding ticket increases with the amount you drive over the limit, whereas no such protocol exists in FCC license-enforcement.

Will being more methodical with repeat offenders of Section 301 of the Communications Act ultimately stem the rising tide of pirate stations? Given the highly decentralized nature of the phenomenon and the FCC’s unwillingness to address the public-policy deficiencies regarding access to the airwaves that push people to break the law in this manner, we can expect more high-profile busts of more sophisticated station-operators – that’ll make for breathless copy in the industry trades – but there’s no indication that this strategy will work any better than others tried over the last twenty years.

Such level-headedness can’t be ascribed to the FCC’s biggest anti-pirate crusader, Commissioner Mike O’Rielly. After lots of bombast on the issue in 2016 and the first half of 2017, O’Rielly’s been relatively silent about his policy hobby-horse – until the turn of this year. That’s when the Longmont Observer, a non-profit online publication that covers local news in this community of 90,000 just outside of Boulder, published a short article about the (re)appearance of a pirate station in town.

The article provides a capsule-history of Green Light Radio, which has operated on and off for the last decade-plus in the area. It also mentions that the station is one node in a network of unlicensed FM stations in Colorado, some of whom have also been around for more than a decade, and share content and politics. Finally, the Observer summarized the FCC’s enforcement protocol against unlicensed broadcasters.

But it must have been the article’s closing line, “In the meantime, enjoy Longmont’s pirate station while it lasts,” which really set O’Rielly off. On January 3, the Observer published a letter to the editor from O’Rielly, in which he chastises the Observer’s coverage of Green Light Radio as offering “tacit support” to the endeavor. “Pirate radio should never be romanticized or its negative impact minimized,” he wrote.

“In learning of a pirate station, the proper action should have been to alert the [FCC’s] Field Office in Denver to initiate an investigation and potentially enforcement proceedings, not suggest people listen while they can.” In addition to throwing about the standard canards of unlicensed broadcasting’s potential “harms” to public safety and emergency communications, O’Rielly also claimed that such pirates “threaten the survivability of legitimate stations operating throughout Colorado.”

This is an absolutely laughable claim because any Colorado station that cannot be heard in the immediate vicinity of Longmont and Boulder suffers absolutely nothing from a pirate’s existence there. The Observer itself noted that Green Light operates “with no danger of interference.”

O’Rielly concluded by suggesting that “It would be helpful if Longmont citizens and the Observer assisted [the FCC’s pirate radio crackdown effort] by, at a minimum, refusing to listen to or support such ‘stations.'” To its credit, the Observer did not take this lightly: in a rejoinder, its editors note the “odd, and by what we can tell, unprecedented” intervention of an FCC Commissioner into the news coverage of a “tiny digital-only locally focused news outlet in Longmont Colorado and tell us what story we should write, and how to write it.”

It also quotes the FCC’s own words on freedom of speech, which says in part, “Expressions of views that do not involve a ‘clear and present danger of serious, substantive evil’ come under the protection of the Constitution, which guarantees freedom of speech and freedom of the press and prevents suppression of these expressions by the FCC.”

Regardless, it’s clear evidence that either O’Rielly himself or (most likely) an FCC staffer scours the Web regularly looking for news coverage of a phenomenon this particular Commmissioner detests, in order to protest any coverage which does not comport to his narrow-minded view of it.

If anything, this is as clear an indication of the broken state of FCC enforcement practices and protocols as anything the agency might otherwise be doing, and unmasks the moral and ethical deficiencies in media policymaking which affect all FCC business to some degree. Now that licensed stations don’t even have to maintain physical studios anymore, such dirty pirates may soon be the only ones actually providing the localism and community service that O’Rielly supposedly holds so dear.

What Mike O’Rielly continues to not get is the fact that pirate radio is a phenomenon whose roots lie directly in the policy and market-failures of the FCC when it comes to regulating public access to the public airwaves. It’s a “problem” that’s festered for a century now, but O’Rielly will most likely continue to claim willful ignorance of these conditions, which only serves to tar the personal crusade he would like to believe is honorable – but in reality is nothing more than a new retread of a fool’s errand.

It is absolutely unprecedented for an FCC Commissioner to attempt to badger journalists for simply doing their jobs. Not only does this indicate that O’Rielly doesn’t fully understand the role of journalism in a democratic society, but he seems to despise it in some respects.

Just so we’re on the same page here, if it has not been made clear in 20+ years’ worth of online writings: I unabashedly and wholeheartedly support pirate radio as a mechanism by which the communications policy/market-failures of this country can be proactively and positively addressed. I do not like the fact that tens to hundreds of thousands of people have been forced to operate outside the law, though I’ve also advocated for harm-reduction strategies that might do more to ameliorate this issue than the tried-and-failed strategy of outright prohibition and criminalization.

And until O’Rielly can convince Congress to gin up a law that opens me and other journalists up to charges of “aiding and abetting” such broadcast practices, I will continue to report on them and the FCC’s attempt to quash them, with particular emphasis on demystifying the enforcement-process so as to help unlicensed broadcasters assess their relative risk and mitigate it, all in the name of providing better and more impactful public service than an over-large proportion of licensed broadcast stations do.

Last I checked I still live in the United States of America, and we still have a Constitution whose first amendment guarantees that speech like mine, the Longmont Observer’s, and any other journalists’ coverage and perspective of this issue trumps whatever legal diarrhea O’Rielly and the FCC might come up with to try and demonize it.

Of course, this also means that Mike O’Rielly is free to be as bombastic and ignorant as he wants to be. The man’s cruising on hubris, overplaying his authority as an FCC Commissioner to wage a war of folly on a “problem” that’s only so because of structural policy and market-failures he and his colleagues are too chicken to confront head-on. But that freedom only extends to the point where O’Rielly contravenes the law itself, and he’s dangerously tip-toeing around that line, which may very well end up undermining his pet crusade.