In May, Rep. Leonard Lance (R-NJ) introduced the “Preventing Illegal Radio Abuse Through Enforcement Act,” otherwise known by the acronym PIRATE Act. The bill makes several changes to existing FCC regulations regarding unlicensed broadcasting:
1. The maximum monetary penalty that can be assessed for unlicensed broadcasting on the AM and FM bands is increased from an aggregate maximum of $100,000 to $2 million, and can be doled out in increments of $100,000 per day. These fines can be issued against the pirate broadcaster directly, or against any entity that “knowingly and intentionally facilitates pirate radio broadcasting.”
“Facilitates” is defined as “providing access to property (and improvements thereon) or providing physical goods or services, including providing housing, facilities, or financing, that directly aid pirate radio broadcasting.” This hearkens back to a historical precedent set by European laws in the 1960s that attempted to outlaw offshore pirate radio by making it illegal to supply and advertise on the station-ships and platforms operating in international waters.
2. The FCC can skip the forfeiture-warning (i.e., Notice of Apparent Liability) step in the enforcement protocol if “the Commission has direct evidence that the person is responsible for a pirate radio broadcast and such broadcast is occurring in real time.” The bill’s language is fuzzy on whether or not the agency must still provide a nominal warning (i.e., Notice of Unlicensed Operation) to the station before escalating to a mongo-fine.
3. At least twice a year, the FCC will be required to do enforcement “sweeps” of the top five U.S. radio markets where unlicensed broadcasting is most prevalent. “Such effort shall include identifying, locating, and terminating such operations and seizing related equipment,” and these sweeps must be in addition to the pirate-hunting that field agents engage in on a regular basis.
4. State and local governments are allowed to “enact a statute or ordinance that imposes civil or criminal penalties for pirate radio broadcasting, or for knowingly and intentionally facilitating pirate radio broadcasting,” which three states have already done, so long as the state/local agencies coordinate their activities with the FCC. In effect, this means FCC agents would confirm that a particular station exists and is unlicensed, after which state/local authorities could pursue their own enforcement actions. The FCC reserves the opportunity to prosecute such stations in addition to any state/local penalties.
At a hearing on June 13th, the House’s Subcommittee on Communications and Technology approved the PIRATE Act on a voice vote, sending it to its parent Energy and Commerce Committee for further consideration. Rep. Chris Collins (R-NY), a cosponsor and subcommittee member (who’s received $3,000 from the National Association of Broadcasters so far this year), repeated the propaganda that unlicensed broadcasters “threaten public safety, and negatively affect not only radio listeners but also local broadcasters,” and hopes the PIRATE Act is a step toward stopping the pirates “plaguing” the airwaves.
Sponsor Lance (who’s also taken $3,000 from the NAB in 2018) called pirate broadcasters “menaces to public safety and health.” He also hopes to amend the PIRATE Act to require the FCC to tender annual reports to Congress on their anti-pirate enforcement activities, and introduced a letter into the record from the National Association of Black-Owned Broadcasters (NABOB) suppoting the bill.
NABOB’s letter notes that while some pirates “have gained recognition for providing quality service to minority communities, such pirates are by far the exception, not the rule,” and suggests that their popularity largely stems from “playing music and other material that would violate the Commission’s indecency rules if aired by licensed stations.”
Similarly, The Multicultural Media, Telecom, and Internet Council (MMTC) also produced a letter last month in support of the PIRATE Act: “these stations are in effect exploiting minority communities by misleading listeners as to their legality and stealing advertising revenue from licensed, sometimes minority-owned broadcasters, that invest in their communities,” it wrote.
Both the NABOB and MMTC letters provide a semblance of approval for anti-pirate enforcement from the communities these organizations ostensibly represent – but the problem is that NABOB and MMTC have very little on-the-ground record of improving the media environment, and MMTC in particular has allied itself with industry desires in other media policy fights, such as net neutrality.
In reality, both organizations seem more concerned about preserving their marginal seats at the policy-table so that they can continue to claim to be players in the policymaking-game, rather than advocating for fundamental policy changes which might actually improve the informational and media-dynamics in the communities they purport to speak on behalf of. One could even argue that the very prevalence of pirate stations in these communities is an indicator of just how ineffective NABOB’s and the MMTC’s advocacy efforts have been over the years.
At present, the PIRATE Act has 14 cosponsors: eight hail from New York, one is from Florida, one from Massachusetts, two from Texas, one from Michigan, and one from Tennessee (the Subcommittee Chair, Marsha Blackburn). All but four of the 15 have received campaign contributions from the NAB this year – an aggregate investment of $40,500 so far, not counting additional contributions made by state broadcasters’ associations.
No companion legislation yet exists in the Senate.
Given Congress’ penchant for non-action, it’s anyone’s guess as to whether the PIRATE Act will make it through the full Congress and be signed into law. It may end up as a rider on some other wholly unrelated piece of legislation. And if it were approved, will it actually improve the FCC’s anti-pirate enforcement efforts? Several empirical indicators suggest it won’t.
First, the FCC’s historical effectiveness with regard to actually collecting on the monetary penalties it issues is dreadful. In 2017 an Enforcement Bureau official generously estimated the FCC’s success-rate at 10% in anti-pirate actions – and in many recent cases, the FCC has opted to raid pirate stations after substantial fines issued against station operators went unpaid, some for more than a decade. How, exactly, is skipping a step in the warning-protocol and multiplying the maximum fine by 20 going to improve this state of affairs?
Collection-authority will still reside in the Department of Justice, with which the FCC will have to coordinate civil lawsuits to compel payment. The track record of success here is virtually non-existent, and the DoJ itself is facing massive pressure to enforce other unpopular policies, such as its new “zero tolerance” stance on immigration.
Second, where exactly will the FCC find the resources to ramp up its war on pirate broadcasters? The agency is self-funded – its revenue is determined by the fees it assesses on the industries under its purview, including things like spectrum license-fees. (When it conducts spectrum-auctions, the majority of those funds go into U.S. Treasury general funds to be spent on many other non-FCC programs). Yet in the agency’s FY 2018 budget proposal, it sought a net reduction in some of these fees, and proposed to reduce its workforce by more than 100 full-time employees. This included a staffing-cut in the Enforcement Bureau of 15 FTEs (from 204 in FY17 to 189 in FY18).
In its FY 2019 budget proposal, the agency plans to shave its fee-revenues (i.e., operating funds) by another $21.1 million (6%), while cutting another two full-time employees from the Enforcement Bureau, leaving 107 tasked with the agency’s strategic goal of “protecting consumers and public safety.” Line-item requests within the Bureau for travel expenditures, contractual services, and supplies contain negligible increases, though the Bureau does plan to spend another $2.5 million on “equipment,” ostensibly to continue upgrading the agency’s mobile direction-finding capabilities.
The PIRATE Act does reference state and local governments as potential partners in pirate-hunting, but those governments are also by and large hamstrung by austerity, and have been for years – not to mention that the zeal for busting pirate stations tends to decline the closer a government agency is to the community the station serves. In some cases, state and local law enforcement have even refused to assist the FCC in enforcing the broadcast license requirement.
Finally, what sorts of regulation will the FCC cease to enforce in order to free up the time and personnel to hunt and “sweep” for pirate stations? At present, the Enforcement Bureau outlines 20 “investigative and adjudicatory areas” that it is responsible for; of those, just two are directly broadcast-related, and within those two unlicensed broadcast enforcement is but a small part of the enforcement duties the Bureau is responsible for. Yet according to Obama-era Chairman Tom Wheeler, the Enforcement Bureau spent at least 20% of its time hunting and busting unlicensed broadcasters; Pai-era Enforcement Bureau chief Rosemary Harold is coy about providing a similar figure, but if more than one-fifth of the Bureau’s time is already being devoted to this singular problem you can bet there are a lot of other FCC regulations going unenforced.
Commissioner Mike O’Rielly, who’s led the crusade to crack down on unlicensed broadcasting, recently blogged that since the Internet is mimicking and/or replacing many traditionally-regulated platforms of communication such as radio and television, perhaps the FCC should get out of the business of regulating those platforms entirely. That would certainly free up some resources to direct to industry pet-projects such as pirate-hunting – but at what cost to providing meaningful regulatory service in the public interest, convenience, and necessity?
Given that the agency’s wholly redefined the meaning of that key statutory phrase over the course of several decades now to primarily serve industry desires, and this state of affairs has only intensified under the Trump
administration proto-autocracy, these legislative maneuvers deserve close and continual scrutiny.