On July 12, the House Energy and Commerce Committee approved H.R. 5709, the Preventing Illegal Radio Abuse Through Enforcement Act (aka PIRATE Act) on a voice vote. This comes one month after a subcommittee signed off on it. There were some notable amendments offered and accepted by the Committee, sponsored by Reps. Chris Collins (R-NY) and Mike Doyle (D-PA), both of whom are cosponsors.
First, the number of enforcement sweeps of the top five markets identified by prevalence of unlicensed broadcast activity has been reduced from twice per year to once per year. However, six months after this annual sweep, the FCC will be required to conduct “monitoring sweeps” of target markets “to ascertain whether the pirate radio broadcasting identified by enforcement sweeps is continuing to broadcast and whether aditional pirate radio broadcasting is occurring.”
Rep. Doyle explained that this change was made so that anti-pirate enforcement would not unduly take time and resources away from “other critical missions” of the FCC’s Enforcement Bureau and its field staff.
Second, the amendment softens language about how zealous field agents should get when busting pirates. Instead of requiring that agents “terminate” stations, they’ll now be required to “take enforcement actions designed to terminate” them.
Third, the escalation-protocol for assessing forfeitures of up to $2 million has been clarified. Unless the FCC has “good cause” (changed from “compelling circumstances”) to not fast-track a fine, the Enforcement Bureau may skip the initial warning-letter (i.e., Notice of Unauthorized Operation) and proceed directly to a Notice of Apparent Liability (NAL). NALs indicate that a forfeiture is imminent and provide the target of an enforcement action a chance to respond before a fine is formalized. This stands to greatly reduce the issuance of warning-notices more broadly and generate more forfeitures (collection success-history notwithstanding).
Finally, the bill now requires the FCC to keep a “Pirate Radio Broadcasting Database” which will include, “in a clear and legible format,” both an entire listing of all licensed AM and FM radio stations, as well as “All entities that have received a Notice of Unlicensed Operation, Notice of Apparent Liability, or Forfeiture Order by the Commission.” The FCC will be required to provide “a direct link” to this database from the agency’s home page.
According to Rep. Collins, this database-project is designed to inform advertisers about who they can legitimately spend their money with, and what “bad actors” they should avoid.
In addition to various members overhyping unlicensed broadcasters’ “threat” to public safety and spectral integrity – including a half-baked claim by PIRATE Act cosponsor Paul Tonko (D-NY) that their “threat” will only grow as climate change does (huh?) – Chairman Greg Walden (R-OR), a former owner of radio stations, took a swipe at pirates for the supposedly “vile and vulgar” programming they produce.
The PIRATE Act has not yet picked up any additional cosponsors, nor has companion legislation been introduced in the Senate.
If the FCC’s looking for a well-stocked database, it can always peruse our numbers, which show an interesting trajectory of enforcement activity this year to date. In 2017, the Enforcement Bureau had a fairly sedate start to its pirate-hunting, then dramatically ramped up the number of enforcement actions by mid-year. This year, the agency started off stronger but has not kept up the pace. Unless there’s a summer surprise in the works, which is not wholly out of the question (July is historically the busiest month for anti-pirate enforcement, and we’re still waiting on the Enforcement Bureau’s vaunted “Tiger Teams” to make a splash on the ground), 2018 is on track to end with less enforcement activity compared to a year ago.
Interestingly, last year’s revenue-per-enforcement action figure dovetailed quite nicely with the historical average ($377 per action in 2017, compared to $393 historically), based on $158,800 in forfeitures assessed against nine entities. This year, revenue-per-enforcement is a paltry $16, based on a single $2,500 fine – originally assessed at $15,000 in 2016 but adjusted downward after negotiations with the unlicensed broadcaster in question. The agency has issued one NAL for $25,000 this year, which is expected to be formalized as a forfeiture before 2018 is done. There’s also a whopping $144,344 NAL issued last year that has not yet been formalized [UPDATE: the Enforcement Bureau formalized this forfeiture the day after I published this post]. Regardless, the FCC remains far from breaking even on the pirate-hunting it’s engaged in – any penalties meted out and collected pale in comparison to the investment in time and personnel.
Although the agency has doubled the number of station-raids it has conducted (four this year, compared with two last year), the vast majority of enforcement actions continue to be visits and warning-letters, and gratuitous duplication remains in full effect. Just this month, the Enforcement Bureau issued two warning letters against a property-owner in Brooklyn, New York for the same station, referencing the same visit agents made to the property in April. This property owner was also dimed in 2013, for another station alleged to be operating there; surprisingly, the actual radio pirate(s) in any of these cases were not contacted directly.
If the agency does light a fire under its field agents in the second half of this year, they’ll have plenty of territory to cover: a full one-third of all U.S. states have seen anti-pirate enforcement activity, and by straight numbers some previously not-very-notable states, such as Colorado and Connecticut, have cracked the top five. But still, even if the PIRATE Act were to become law, just how will the FCC develop the long arm necessary to enforce it?