Anti-Pirate Activity Rebounds from 2015 Nadir

Though not by much, and certainly not along the lines of what we saw at the beginning of this decade. August was a busy month for FCC field agents, who conducted nearly three dozen enforcement actions against fewer than half as many stations. The state-leader this year so far is Florida – while New York still leads the all-time pack enforcement action-wise – and the FCC’s flexed its muscle in only seven states, compared to 10 in 2015.
Some of the cases are fairly curious, such as a $15,000 Notice of Apparent Liability issued against a Florida man who first started broadcasting without a license way back in 2013. One visit that year, followed by four visits last year (and a change in frequency), finally compelled the FCC to bring the threat of a fiscal penalty to bear.
Then there’s the case of an Alabama man who first hit the FCC’s radar in 2015; after being warned he voluntarily surrendered his transmitter via mail, only to get a new one and move to a new channel. When contacted again by the federales, he expressed the wish that he could be legal but no application windows for LPFMs are in the works, so his “hands were tied.” Not a good enough excuse to avoid a $15,000 NAL…but then again, it remains to be seen whether the FCC will formalize these as actual forfeitures, much less be able to collect on them.
There’s even some pirate TV action happening: field agents discovered someone broadcasting on Channel 10 (though they don’t say if it was analog or digital) in Morehead, Kentucky. They measured the signal as being more than 20,000 times the limit allowed by FCC Part 15 regulations – no word if the broadcaster has shut down, or what the programming was. (This incident is not included in the Enforcement Action Database, which only covers radio.)
In sum, there’s been no change in the FCC’s anti-pirate enforcement protocol: it’s a paperwork-exercise, with many duplicative visits and warning-letters, both to station operators and property owners, which only serves to inflate the apparent work being done. Will this change come January, when the FCC’s field office reorganization goes into effect and the Enforcement Bureau’s vaunted “Tiger Teams” take to the streets? Smart money is on more pulse-style enforcement, as agents flood a locality and ding everyone they can find – but effective follow-through remains to be seen, and there’s nothing in the reorgnization-effort that addresses that particular quandary.
What about the pirates’ latest nemesis, Republican Commissioner Mike O’Rielly? At a speech to the Telecommunications Policy Research Conference in D.C. last month, he lamented the fact that “evidence-based policymaking” is “often not welcome” at the FCC: “Federal agencies, even so-called ‘expert’ agencies, tend to focus on what has worked in the past, continuing to view current trends in light of old regulatory paradigms, even if available data suggests that a new approach is warranted,” he remarked.
“Therefore, it is not uncommon to witness backward-looking solutions proposed for forward-looking issues, without serious consideration of whether alternative approaches would produce more efficient outcomes, or whether regulation is necessary or useful at all. . . .In recent years, the Federal Communications Commission too has avoided engaging in this type of serious analysis and reflection. FCC Notices and Orders rarely contain a detailed discussion or rebuttal of opposing legal or policy arguments, data that does not support the desired outcome, or realistic assessments of the benefits. At most, alternative arguments are relegated to footnotes where they are summarily dismissed, often en masse and without any corresponding data or fact-based response.”
If any of this sounds familiar, it should, because it’s precisely the ideological straight-jacket that currently impedes the FCC’s ability to move beyond a reactive paradigm in the context of unlicensed broadcasting. “The law is the law,” say FCC officials, O’Rielly included, “and we must enforce the law”…even if doing so is a fool’s errand with no meaningful value with regard to the preservation of the licensing mechanism. It’s been broken for decades.
But what is O’Rielly’s solution? Demonstrating the capture of regulation by economic ideology alone, he suggests cost-benefit analyses: “More often than not, all that is contained within items is a couple of sweeping assertions that the costs will be minimal but the benefits considerable. They are the kind of statements that you would expect to find in a press release, not the work of a so-called expert agency that has oversight over one of the most dynamic markets in the U.S. economy,” he said.
By O’Rielly’s own proposal, the FCC’s ongoing skirmishes against unlicensed broadcasting fail the cost-benefit analysis test. In this year alone, the FCC has issued just four monetary forfeitures for a total of $55,000. Sounds like a high number, but when broken down by the amount of time the FCC spends on unlicensed broadcast enforcement field activities (and presuming that the agency can collect the full amount on every fine, which is a generous assumption), that generates a pitiable $355 per enforcement action. That’s nowhere near enough to cover the labor and equipment-costs associated with pirate-hunting.
Over the last 19 years that I’ve been collecting data on the FCC’s field enforcement activities, the FCC’s issued 150 monetary forfeitures against pirates, totalling a bit north of $1.6 million. But when averaged across all field enforcement actions, it results in just $414 in revenue per action: the cost-benefit ratio has gotten worse in recent years, not better.
One would think that, based on this “fact-based” narrative, which O’Rielly would most assuredly contextualize as an “opposing legal or policy argument,” he might be persuaded to rethink the agency’s approach to pirate broadcasting. Might there be a better way to utilize the FCC’s austere resources more effectively to perhaps contain or manage the “problem,” rather than bombastically declaring that the goal is to wipe such stations out?
Both he and I realize that the latter is impossible…but it’s a strong indicator of the ideologically duplicitous perspectives that O’Rielly holds on many media policy issues; in one context he’ll suggest breaking from traditions, while in others he’s ultra-orthodox despite the evidence showing the ineffectiveness of such a stance. It leads one to wonder just how well he understands the form and function of media policymaking more broadly, beyond some platitudes he learned in a business class during undergraduate studies, or perhaps as a mealy-mouthed Congressional staffer trying to find his place in the neoliberal status quo.
If O’Rielly were to walk his latest talk, he’d ratchet down his “wipe ’em out” rhetoric and policy-philandering with the broadcast industry on the subject of pirate stations, and actually commit to exploring policy mechanisms which might provide a tangible return-on-investment. But doing so would mean jettisoning his stance on the issue he’s chosen in a desperate attempt to differentiate himself from the other Commissioners. Unwilling to try his own medicine in a low-stakes arena where it might actually prove beneficial, you can’t help but feel a little sorry for the guy.