The two principals behind the high-profile pirate “Power 103.3” in Bettendorf, Iowa have been handed stiff monetary forfeitures by the FCC. Matthew Britcher, self-proclaimed “promotions director” of the commercial-format station, is being asked to pay $17,000 for running the station and refusing an FCC agent’s request to inspect it. Jason Duncan, quoted in local media as a “co-owner,” received a $10,000 forfeiture.
This is the first FCC case to get this far in which the pirates invoked 47 CFR 73.3542 as a defense; this little-known statute allows for emergency broadcast services in times of war or national emergency. Britcher and Duncan called it the “War Powers Act,” and some other pirate stations are treating it as a license-free pass, but it is nothing of the sort.
In legal challenges to the FCC’s licensing rules brought by pirate stations, courts are more likely to consider the challenge favorably if the pirate first tries to get a license but is denied. Similarly, 47 CFR 73.3542 requires that someone who wishes to invoke the emergency authorization procedure file an informal application with the FCC first. An “informal” application still requires lots of information, including applicant name, address, type of broadcast equipment to be used, frequency and power levels, and a
statement of facts which, in the opinion of the applicant, constitute an emergency to be found by the FCC for the purpose of this section. This statement must also include the estimated duration of the emergency and if during an emergency or war declared by the President or Congress, why such action, without formal application, is necessary for the national defense or security or in furtherance of the war effort,
among other things. Not only did Britcher and Duncan not follow the statute’s initial directions, but the “applications” they filed with the FCC after being called out didn’t provide all the necessary information. This is why the FCC so quickly denied their petitions for reconsideration when they learned they were to be assessed monetary penalties.
Even though you expect the FCC to rule in its own favor on issues of administrative law, just like the history of most microbroadcast legal challenges before them, any challenge Britcher and Duncan bring to this ruling in federal court is likely to fail because they didn’t properly read and follow the statute they hoped would protect them.
It turns out that they’re not the brightest bulbs in the chandelier anyway, but there are other pirate stations out there who are similarly gambling on this loophole. Though their intentions may be nobler, they face a comparable liability.
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