Congress to Target Pirate Advertisers (and Others?)

All five FCC Commissioners spent more than three hours on Capitol Hill last week being questioned by the House Energy and Commerce Committee during an “oversight hearing,” which is a fancy way of saying “let members of Congress score political points by grandstanding on the FCC-related issues they care about the most.” While the hearing itself was mostly dominated by subjects such as the agency’s upcoming spectrum auctions and proposals to detach set-top TV boxes from the grip of cable service providers, two Congressfolk raised the issue of pirate radio with the Commissioners.
First was Rep. Frank Pallone (D-NJ), who’s been a very vocal supporter of increased enforcement efforts against pirate stations in the New York City metropolitan area. He announced that he plans to draft legislation to asssist in these efforts and lobbed Commissioner Michael O’Rielly a softball question on the state of pirate radio enforcement: in effect, “what should this bill include?”
O’Rielly said that “getting at the money part” of pirate radio was paramount. Many entities advertise on pirate stations; he mentioned concert and club promoters and political campaigns (?) in particular. However, O’Rielly also noted that he did not want such legislation to penalize those who may “inadvertently” assist unlicensed broadcast operations, such as landlords who may not know they’re renting space to a pirate station.
This would represent a change in the FCC’s current enforcement protocol, which regularly contacts property owners and managers with Notices of Unlicensed Operation that suggest they can be held liable for a pirate’s operations. Similar allegations are made in the FCC’s recent “Enforcement Advisory” distributed to trade organizations whose members may be doing business with unlicensed broadcasters.
Targeting those who advertise on pirate radio stations doesn’t seem like a comprehensive solution, primarily because not all pirate radio stations are commercial; in the NYC area, perhaps maybe half are, so all such legislation would do in this regard is thin the herd. The number of noncommercial pirate stations left behind will still represent a level of activity beyond what the FCC’s newly-downsized field enforcement staff can handle.
In a speech to the Hispanic Radio Conference last week, Commissioner Ajit Pai suggested new legislation may also include “giv[ing] radio broadcasters a private right of action against pirate operators. This would allow a broadcaster to directly sue a pirate who is interfering with its signal. No longer would a broadcaster need to wait for the FCC to take action.”
Much later in the hearing, Rep. Chris Collins (R-NY) who, despite representing a district far away from any pirate radio hot-spots, has made the issue one of his personal faves, asked FCC Chairman Tom Wheeler about allegations that unlicensed broadcast enforcement is on the decline, citing an e-mail from an Enforcement Bureau manager that suggested fiscal penalties against pirates would be de-prioritized.
Wheeler responded that he’s personally “taken serious interest” in pirate radio, noting that about 20 percent of the work of the Enforcement Bureau is devoted to unlicensed broadcast activity. He also noted that [not quite] 130 enforcement actions were taken against pirate broadcasters in 2015. Ultimately, “we need to get to those who enable” unlicensed broadcasting, and that, in Wheeler’s view, will take new legislation from Congress.
Collins also alleged that senior FCC managers “do not want to shut down pirate radio because they serve certain communities,” especially in the NYC area, and silencing them may seem politically uncouth. Is this actually the case, asked Collins? “That’s news to me,” said Wheeler.
The takeaway from the FCC’s latest appearance on Capitol Hill is two-fold. First, the Commission has most definitely bumped up the issue of unlicensed broadcast enforcement on its list of policy-priorities. However, before the FCC can take meaningful action on this front, it needs additional tools from Congress — and those tools are most definitely forthcoming.
Licensed broadcasters have obviously latched on to airing advertising as perhaps the most illicit thing that pirate stations do. While that certainly fits their paradigm, does it comport with the actual practices of pirate radio that they seek to squelch? And is the FCC truly ready to cede authority and jurisdiction over enforcement of the broadcast license mechanism after spending so many decades fending off any challenges to it?