FCC Radically Revises Enforcement Drawdown

Three months ago, the FCC announced it was preparing to decimate its Enforcement Bureau by removing half its existing staff from the field and closing two-thirds of its field offices. The proposal, based on a $700,000 study prepared by outside consultants, did not sit well with anybody, and was popularly seen as the FCC effectively abdicating its role as police on the public airwaves.
That is, until last Tuesday, when the FCC announced it was abandoning that plan. There will still be enforcement cuts, but nearly not as draconian. Nine field offices are slated to close (instead of 16) and the agency has pledged to concentrate its field staff in markets where maintaining spectrum integrity is of primary importance. To make up for the offices that will be closed, the FCC will have not one, but two “Tiger Teams” ready for deployment on a short fuse. Even though it was brief, Chairman Tom Wheeler’s statement on the revised plan sounds contrite: “This updated plan represents the best of both worlds: rigorous management analysis combined with extensive stakeholder and Congressional input.”
In simple terms, the broadcast industry lit a fire under Congress about the importance of having something akin to recognizable (if not robust) enforcement activity by the FCC. This is the fruit of a carefully-coordinated lobbying campaign by the National Association of Broadcasters, New York State Broadcasters Association, and New Jersey Broadcasters Association, and the hook they used to make their counterattack on the FCC’s downsizing plan was pirate radio. The subject was mentioned repeatedly in Congressional hearings during which the reduction-in-force came up. And on the day that the FCC announced it was stepping back from eviscerating enforcement, a letter co-signed by more than 30 members of Congress to the FCC was released highlighting “Unauthorized FM Radio Operations in New York City.”
This document, dated on the same day as the FCC’s announcement of its revised cutbacks and signed by every member of New York’s delegation to the House of Representatives (and half of New Jersey’s) paints unlicensed broadcasters as a “persistent” scourge that underrmines the integrity of the FM band. The Representatives estimate that “there appear to be 34 pirate radio stations operating on rooftops in Brooklyn and the Bronx alone” – in fact, things are in such a state that “[t]he number of pirate FM radio stations throughout New York City could well outnumber the number of licensed operations,” and their numbers are only growing.
Those are fair claims — in fact, they may even be understated. Then comes the litany of grievances; the most notable are those involving interference. According to the Congressfolk, there is at least one case of a licensed station asking “to change its [Emergency Alert System] monitoring assignment because of intereference from unauthorized operators to New York Public Radio’s WNYC.” Such interference, they say, “may disrupt the entire alert system in New York City, Long Island, and northern New Jersey,” potentially putting millions at risk in the event of an emergency.
This is a bit overwrought and does not adequately tell the truth about how the EAS system actually works. Stations monitor more than one link in the EAS chain of stations — typically two, as per New York State’s own EAS monitoring plan — so if one link in the chain fails there’s some redundancy built in. The FCC’s FAQ on EAS contextualizes it as but one tool in the emergency-warning toolbox: “If one link in the system for spreading emergency alert information is broken, members of the public have multiple alternate sources of warning,” such as the Common Alerting Protocol, which now disseminates emergency information via cell phone.
None of this is to say that interference to licensed stations is not a problem, but politics has a penchant for hyperbole. And it gets thicker: New York and New Jersey’s Congressional delegation accuse radio pirates of harming “some of the most vulnerable populations in New York. We do not believe the FCC should allow these communities to be served by radio stations operating without regard to basic consumer protection laws and FCC regulations.” The insinuation is that these stations somehow prey on their listeners, which is galling to the extreme because no licensed broadcasters serve the communities that pirates do. In fact, those who run unlicensed stations are often directly from the communities they serve, and they keep themselves on the air by supporting and promoting local businesses.
It also presumes that the FCC has a stringent regime of consumer-protection regulations that it enforces — which it does not, and what does exist broadcasters are actively trying to dismantle.
Yet somehow, these stations “undermine investment in legitimate minority broadcasters,” long a hobby-horse issue with the FCC and one that the broadcast industry pays a lot of lip service to. Unless you count the sale of distressed AM stations for pennies on the dollar as “investment in legitimate minority broadcasters,” which is done more for the purposes of a tax write-off and positive press than it is about building a coherent and socially just redistribution of braodcast properties to reflect the true diversity of New York (and, by extension, the United States). How dare the people’s representatives demonize their constitutents when they take matters into their own hands to create a better media environment for themselves.
Pirate radio, in many of the districts represented in the letter, is a physical manifestation of what is wrong with broadcast media policy on many levels, and these members would be wiser to perhaps speak directly with these broadcasters as opposed to regurgitating talking points from the NAB, NYSBA, and NJBA.
In closing, the delegation asks the FCC to turn up the heat significantly on pirate radio without delay. They would like to see the FCC issue more fines, make more station-raids and equipment seizures, and work more closely with federal prosecutors to follow through and make sure that penalties actually stick. They’d also like “local law enforcement officials” to get in on this hunt.
The details of the FCC’s revised enforcement restructuring are still murky. According to the House Energy and Commerce Committee, the plan includes “provid[ing] a mechanism for escalating interference complaints” and “improv[ing] enforcement of the FCC’s rules against pirate radio operators,” and according to the Society of Broadcast Engineers a heightened priority on pirate broadcasting will begin “effective immediately.”
The question I keep coming back to is: you and what army? Pirate radio may be most pervasive in large markets like New York, Boston, and Miami, but the phenomenon is nationwide and shifting around already limited (and still-shrinking) resources is not likely to provide a net reduction in unlicensed broadcasting outside of these now-politicized hot spots. Even in targeted markets, the best the FCC and industry complainers can expect is a heightened game of whack-a-mole, especially as stations adapt to new enforcement protocols and adopt more UK-style tactics like separating the transmitter from studio and budgeting for the loss of gear in station raids. In London, for example, authorities may trash multiple transmitter-sites in one night only to have many of those stations reappear the next — to the pirates, that’s just a cost of doing business.
Furthermore, considering that the FCC is responsible for enforcing a wide gamut of communication laws and policies, how will a political priority on what is a relatively small problem in the grand scheme affect the FCC’s ability to do tangible enforcement activity that upholds its mission to serve the public interest?
In the short term, this will be an un-fun summer for unlicensed broadcasters in traditional bastions of pirate activity, but short of full-on militarization or a devolution to vigilantism as a means of enforcement, the heat can’t be sustained for long. My biggest concern is that the broadcast industry is laying the groundwork for a “public-private” enforcement partnership which will effectively sanction vigilante tactics. I’ve been writing for years that unlicensed broadcasting is for all intents and purposes a form of guerrilla information warfare, whose tempo waxes and wanes as the political, cultural, and economic winds of the country shift. The last time the phenomenon was so explicitly politized was during the microadio movement of the 1990s, but back then pirates were on the offense. The name of the game, regardless of who’s applying the heat, will be operational prudence.