On June 20, the New York state legislature passed a bill criminalizing unlicensed broadcasting. The measure apparently passed the state Assembly by acclimation and cleared the Senate on a unanimous vote. Governor Andrew Cuomo is expected to sign the bill with little fanfare. This is the fourth time an anti-pirate bill has been considered by New York’s lawmakers.
The new law makes it a class A misdemeanor to broadcast without an FCC license in the AM and FM bands, with penalties ranging from heavy fines to (very unlikely) up to a year in jail. Subsequent run-ins with the FCC or state may be prosecuted as a class D felony, which is punishable by a fine ranging between $500-$7,500 and imprisonment of up to five years.
New York will also allow law enforcement authorities to confiscate and destroy any equipment they deem to be associated with a pirate radio station, including “antenna, transmitter, master control, [and] servers and computers.”
New York joins Florida and New Jersey as states with anti-pirate radio laws on its books. These three states represent hot spots for unlicensed broadcasting relative to the rest of the country; therefore, it is no surprise that the states’ broadcast lobby worked long and hard to implement this extra-punitive measure.
That said, this development is not likely to result in a major diminishment of unlicensed broadcasting in New York. Local and state law enforcement officials have much bigger concerns to worry about than busting radio stations.
In the seven years since Florida criminalized unlicensed broadcasting, some pirates have been arrested, but nobody has been convicted under state law. New Jersey’s anti-pirate statute has snagged a whopping zero broadcasters in five years.
Working broadcasters in New York admit this law is a “feel-good” measure that ostensibly allows for more enforcement – but in an economic environment where public safety services and the judiciary are feeling the budget crunch, and more pressing crime exists, this measure is likely to suffer a similarly under-exercised fate.
I still believe that a state’s preemption of federal regulation – especially in the case of the Federal Communications Commission, which has historically been very protective of its jurisdiction – is a murky legal proposition. This even goes for the state of Oklahoma, which has considered legalizing microradio on its own.
FCC field agents may see these developments as welcome assistance toward the thankless and superficial enforcement efforts they already engage in, but as more states assent to laws like these, the more potential there is for substantive challenge to whomever claims inherent jurisdiction over the airwaves.