Just one day before the Federal Communications Commission approved the creation of a low-power FM service, Chairman William Kennard spoke to a group of telecommunications companies and laid out his vision of what the FCC’s new “enforcement ethic” would be in the year 2000 and beyond.
A couple of months ago, the FCC reorganized its resources and created a whole new Enforcement Bureau – consolidating all of the agency’s enforcement activities into one central organization.
Under the old hierarchy, the regulation of telephones, cable companies and radio stations were handled in different FCC bureaus – and each bureau had its own enforcement agents. Now, those agents share a bureau of their own. Does this portend good or bad news for pirate stations?
The “New Ethic”
It appears the FCC’s going to continue reacting to problems instead of trying to prevent them. However, the enforcement process will be streamlined somewhat.
Chairman Kennard says the FCC’s new Enforcement Bureau will be “firm, fast, and flexible.”
“We must be firm in the face of violations, fast in resolving disputes, and flexible in [our] approach to problem solving,” stated Kennard.
How this will be done isn’t common knowledge, but based on Kennard’s remarks, here are some notions of things to come:
Firmness: It’s important to remember that the increase in pirate busts over the past few years is not due to the FCC’s toughening stance on pirate radio; it’s due to the fact that there are more pirate radio stations on the air than ever – logically, this has led to more work for FCC enforcement agents.
Also, it was not the FCC who “declared war” on pirate radio back in 1997. It was the National Association of Broadcasters, who urged its members to scour their local radio dials and notify the FCC about any subversive broadcasting it found. Since the agency works off of complaints, this led to a general complaint increase – again, generating more work for the FCC, but not self-induced.
However, because the workload increased, the FCC began “getting tough” with pirates; instead of just visiting a free radio station and attempting to instill the Fear of God in its operators (which used to work in the past) the FCC began going a step further – seizing the equipment from pirate stations on a follow-up visit or issuing a fine.
But this is a threat radio pirates have been living with for years – not a sign of changing times by any means. And there’s nothing in Kennard’s “new” enforcement ethic that changes this.
Being Fast: Instead of throwing more bureaucracy at a problem, Chairman Kennard intends to bypass as much bureaucracy as possible: “If you have a problem, contact us. And please do so before filing a formal complaint.”
It would seem that the agency’s going to be more responsive to those “tipster” phone calls and e-mails than before. This does have the real possibility of shortening a pirate station’s lifespan.
Instead of someone having to call Washington to get the ball rolling on a “pirate problem,” they’ll just have to call the friendly enforcement agent(s) at the nearest field office.
Kennard also wants to give those field offices a broader and more active role in investigations and actions – decentralizing the enforcement of the radio spectrum may make some gains in the pirate crackdown. Until now, pirates have been unorganized guerillas waging war on a centralized enemy. It appears the enemy may now develop its own guerillas to use in the war – allowing aggressive “anti-pirate” agents a longer leash to take care of business.
Flexibility – A Kinder, Gentler FCC?: Chairman Kennard also wants to put enforcement decision-making into the hands of those who actually enforce the rules. Instead of being bound by a strict set of do-s and don’t-s, his idea would “look into alternatives to formal litigation and work with firms informally to help settle issues.”
This may give the radio cops more flexibility in how they handle pirates – and it will probably also mean more disparity between how the 25 different field offices handle each individual case.
For example, Agents out of the Tampa, Florida office are much more likely to go with fines and equipment seizures than agents out of the Chicago office, who take much longer to pull out the “big guns” when dealing with pirates. This trend will probably continue, and even get worse – depending on whether you’re located closer to Tampa or Chicago.
Don’t expect flexibility to work in favor of pirate radio, though: with the creation of LPFM, the FCC is expected to take a much dimmer view of unlicensed broadcasting than ever before – even though it’s attempt to solve the “pirate problem” with a legal service won’t necessarily fix much.
The Players
Looking at the staffing makeup of the Enforcement Bureau, there’s nothing good to be found.
The chief of the new Bureau is David Solomon, who used to be William Kennard’s right-hand man when Kennard was the FCC’s General Counsel. He’s well-versed on the agency’s rules and regulations and has had ample experience defending those rules in court.
Kennard paints a tough picture of Solomon: “I guarantee you he’s seen it all: he knows every trick in the book — the games people play, the enforcement end-arounds, fake-outs, tactics of delay and dispute — you name it, he knows it.”
While that may come in handy in the courts, it doesn’t mean much on the streets. Solomon may be just the person the FCC needs to keep itself on its toes, but he probably won’t have much of an impact on how the agency handles pirate radio – especially since Kennard favors a “bottom-up” approach when handling enforcement actions.
However, the head of the Bureau’s new Investigations and Hearings Division, Charles Kelley, is an old pro at busting pirates; he’s been dealing with problems in the “legitimate” broadcast world for the last nine years, and will certainly play on his own strengths. The Investigations and Hearings division is the arm of the Enforcement Bureau its field agents report to; having Kelley running the shop may make radio pirates a top enforcement priority.
Again, it appears discretion on how to handle radio pirates won’t come from FCC headquarters – although having a boss who’s intimately knowledgeable about broadcasting will probably spur some agents to be more aggressive in hopes of gaining favor with Kelley.
Wild Cards
The FCC will have to make sure it devotes enough resources to take care of these new legal LPFM stations that will appear on the dial.
While this may seem like more problems for pirates, remember this: many of the places where the FCC’s had large “pirate problems” in the past – typically urban areas – will either get no legal LPFM stations at all, or will get very few. The FCC’s new LPFM service will create opportunities for new stations, but the interference rules governing it won’t allow places where the demand for them has been the greatest.
There is also the all-important issue of money: the FCC has already consolidated its field offices from a local to a regional level. With this consolidation has come some cutbacks in staff; fewer radio enforcement agents are now assigned to police a larger geographic area.
Nothing Kennard has hinted at so far indicates that the reactive nature of radio enforcement will change, especially since those agents will now have a whole new crop of licensed radio stations to keep tabs on.
Unless there’s a significant funding increase for the Commission’s radio enforcement agents, the number of “cops walking the beat” won’t change very much. Even if they’re given improved tools with which to make decisions and take action, the manpower simply won’t be there to make much of a difference.
Kennard is talking a good game – but in the real-world analysis, this will probably mean a pirate in the post-LPFM era will have about the same chances of getting caught as pirates did in the pre-LPFM era.
Caution remains the rule of the day, but never forget that the pirate holds the upper hand simply by taking the initiative. And more often that not, it’s the initiative that determines who wins a battle.
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