FCC Whacks Zombie-Moles

The FCC’s Enforcement Bureau is regularly making waves in the agency’s Daily Digest now, issuing slews of warning-letters to unlicensed broadcasters nearly every week. Interestingly, these letters are typically grouped by location: one week it’s a passel of pirates “caught” broadcasting in the New York metropolitan area, the next a bunch of folks in South Florida, etc.
The agency, and radio industry, have long described the enforcement process as “whack-a-mole” in reference to the carny game where you score points bashing plastic rodents with a mallet, who pop up and disappear often before you can bring the hammer down. It’s an apt description…but the agency’s most recent enforcement-activites vividly demonstrate just how devoid the process is of deterrent value.
In an update to the Enforcement Action Database earlier this month, I highlighted the case of Kacy Rankine. He’s a New Jersey-based unlicensed broadcaster who first appeared on the FCC’s radar way back in 2005. That year he received a slew of station-visits and warning-letters from the federales, but to no avail, so the FCC ended up fining him $10,000 in 2007.
It’s highly unlikely that fine was ever paid, because Rankine was noticed again this year (a full decade later) running another station in another New Jersey community. The FCC, which apparently doesn’t keep a logically comprehensive record of its own regarding prior enforcement actions and lacks a semblance of institutional memory on this issue, simply restarted the enforcement process with Rankine, issuing him a warning letter last month.
It turns out he’s not the only zombie-mole being whacked. Back in 2011, the FCC identified a radio pirate operating in Miami; that July, they visited the station and followed up with a warning letter to Robenson Thermitus. It had no effect, so the FCC doubled down and fined Thermitus $10,000 on April 3, 2012.
This fine obviously didn’t take, either, because Thermitus is back: a complaint, origin unknown, was tendered to the FCC earlier this year about a pirate station in Miami (one of many). In July, field agents documented its existence and identified its operator — Robenson Thermitus. Again, in igorance of its own enforcement history, the Bureau sent Thermitus another warning letter earlier this month, as if he was somebody new to this game.
Up north in Boston, Richard Clouden first ran afoul of the FCC in 2007, when agents identified him as the operator of a pirate station there. Clouden was fined $10,000 in 2008, 11 months after agents made initial contact with him. That fine also most likely went unpaid, too, because Clouden’s been re-tagged by the feds for running another pirate station in the Boston area earlier this month.
Interestingly, Clouden was the second operator identified behind this particular station: the first, Talya Andrea Lantz, got her second NOUO the same day this year after an initial visit in May and first warning-letter in July. FCC agents also discovered a second pirate outlet operating from the same location as Clouden and Lantz’s station, and duly issued warning-letters to both operators.
Then there’s the case of Yvon Grandchamps, also in the Boston area, who got a warning-letter this month after FCC visits to his station in June and August. (This letter was dated the same day as the latest missives to Clouden and Lantz). This makes the fourth go-round for Grandchamps, who received visits and nastygrams in 2010 and 2013, which never escalated beyond that.
He was also dimed on earlier this year, with a visit in June and a NOUO in July – but agents listed his last name as “Grand-Champ,” which in their minds must mean he’s a totally different person.
Perhaps there is a madness to this method. Just this week the FCC threatened to drop an inflated forfeiture on some unlicensed broadcasters in North Miami, Florida. In a 15-page Notice of Apparent Liability totalling $144,314 (more than all of the pirate radio-related forfeitures issued by the FCC this year combined), the FCC breaks down the capers of Harold and Veronise Sido and Fabrice Polynice, all busted for running an unlicensed station out of a shed in the Sidos’ backyard.
The Enforcement Bureau goes into exquisite detail about the number of visits it made to these operators and their stations over the last five years, as well as the conversations field agents had with the broadcasters (big mistake on the broadcasters’ part) and the social-media sleuthing it did on the case, most notably on Facebook. It also notes that all parties have prior histories with the FCC, claiming that they first appeared on the agency’s radar in 2012, and prior efforts have included a $25,000 fine to Polynice as well as a station-raid on the Sidos’.
Problem is, that’s not the full story.
It turns out that Veronise Sido and her husband first had FCC contact in July of 2009, which only involved a visit and warning-letter. It took another three years until field agents repeated the visit/nastygram process with them, and then escalated to a station-raid.
Meanwhile, Polynice and his station were raided by local law enforcement way back in 2006 and he was charged criminally under Florida’s anti-pirate statute (then just two years old), to which he pled out for a year’s worth of community service. Thus it it took the FCC another six years to follow up on his case, at which point the $25K fine came into play – which the FCC notes in its missive was never paid.
In summary, this case represents the aggregate efforts of nearly a decade’s worth of FCC personnel and resources to shut down two pirate radio stations, which – when busted hard – combined forces to continue on, not even bothering to move locations.
Failure to make connections with available longitudinal data, especially in cases where escalation-tactics beyond administrative admonishments of varying degrees of severity have obviously failed, speaks volumes about the integrity of the FCC’s broadcast license enforcement-process and drives home the point that current practices are primarily symbolic. I would love to hear the agency explain how, in the face of prior fines, equipment seizures, and even criminal charges, these pirates not only survived but thrived, and how a Notice of Apparent Liability with an extra zero tacked onto the amount is going to change matters one whit.
The only potential saving graces for the FCC regarding the Sidos and Polynice are the facts that such a large fine may actually be worth the time for the Department of Justice to follow through on with a civil suit for collection (that is, if they have staff-time to break away from the ongoing Wars on Terror and Drugs) or, if federal broadcast license enforcement protocols fail again, local authorities are willing to try to prosecute under Florida’s anti-pirate statute for a second time.
None of this stopped four of the five Commissioners from releasing public statements praising this action as the dawn of some new enforcement era. Chairman Ajit Pai claims that, when he became the big-cheese, he made a commitment to increase enforcement efforts against unlicensed broadcasting and that this inflated pre-fine is “back[ing] up those words with action,” sending “a clear message to all pirate operators far and wide that we will use the strongest enforcement tools within our disposal to end this illegal practice.”
Commissioner Mike O’Rielly, who’s made this issue a prime hobby-horse, emphasized the fact that this action concretizes a new enforcement tactic in which those who “aid and abet” pirate stations will also find themselves on the hook for penalties. Newly-minted third GOP Commissioner Brendan Carr echoed O’Rielly’s sentiments, as well as amplifying the industry-cultivated propaganda that pirate stations constitute an existential threat to both the radio industry and public safety.
One problem: the FCC’s already tried and failed to penalize those who provide space to unlicesned stations, such as earlier this year when the FCC collectively fined both a California church and its pastor for unlicensed broadcasting (which has not been collected).
The Polynice/Sido case is an easy swing for the agency, as all parties involved, including the property-owners at which the station was housed, have their own prior histories of pirate radio activity and tactically operated as sitting ducks. If I were Kacy Rankine, Robenson Thermitus, Richard Clouden, or Talya Andrea Lantz, I’d have my ears perked up. But this “new” strategy doesn’t scale: does the FCC have the capital, political, human, or otherwise, to turn its sights on “aiders and abettors,” such as far-flung property-management companies well-versed in litigation and with resources on hand to push back, as is more often than not the case here in NYC, the #2 national pirate hot-spot?
That’s an open question to which no Commissioners have an easy answer, save perhaps the “Tiger Teams” which have yet to take the field (maybe they’ll be the second ring of this circus). Since these folks like to think in purely economic terms: is entangling third parties in civil forfeiture actions a risk the agency is willing to take if the ultimate time and resources spent on challenges to enforcement actions only serves to further outweigh the return-on-investment?
The only Commissioner who seems to have any semblance of a clue that there’s a larger problem going on here beyond law-and-order simplitude is Democratic Commissioner Mignon Clyburn, though her statement also pays unfortunate lip-service to industry tropes about the potential “threats” that pirate radio stations represent. Claiming that there’s “absolutely no justification” for pirate stations, she then pivots: “the proliferation of these stations should spark the question: are there specific FCC policies that are incentivizing individuals to choose the route of operating an unlicensed broadcast radio station?. . .If these unlicensed operators were ever afforded the opportunity to transition to a licensed station, would they take it? Unfortunately, in most large media markets, that opportunty may never exist, both because of the lack of an available license and high financial hurdles.”
Her proposed avenues to address this problem, however, don’t even make for half a loaf: “replicate and enhance the success of low-power (LPFM) stations; establishing a pilot incubator program [of/for what, exactly?],” and requiring radio conglomerates to divest some stations for women and minority ownership when they merge. This is just a rehash of earlier FCC policies, some of which were either undermined at their creation by industry and Congress (LPFM) or have been whittled away at by the market-friendly “degregulatory” fervor that has captured the agency for nigh on three decades now (minority media ownership incentives), but to which Clyburn must hew in order to even be near the room where decisions get made.
Of course, the FCC and its enforcement-troops will continue to pound their chests and the radio industry will cheer them on, even though they all know that the end result will generally be nothing more than great policy-theater.
All that these recent enforcement actions will do is speed up the interval at which moles pop up and down, making them even harder to whack; the FCC may think it’s wielding a bigger mallet now, but it’s just as soft as previous ones. If the FCC’s Enforcement Bureau is already spending 20% of its time on wholly ineffective pirate-busting activities, how is doing the same thing slightly more expansively or expensively going to change a broken system?
The last time I wrote about this, someone commented that it sounded like I was “low-key warning [pirate] broadcasters that the consequences could get out-of-hand faster and more draconian than ever before.” The potential for enforcement-escalation most definitely exists; we’re seeing the “evidentiary record” for this being built up by industry “studies” and pseudo-academic “research” that wildly overstate and politicize the “threat” of unlicensed broadcasting, wholly unmorred from technical and historical contexts regarding the use of radio as a medium defined by a intentionally nebulous (but industry-friendly) public-interest standard.
But the real takeaway is that while the perceived threat of enforcement seems higher, the actual consequences of enforcement remain the same: the paper tiger remains in full effect, and without additional resources and tools (both, not just one), that’s simply not going to change.
There’d be no, or very little, pirate radio if our broadcast media environment was more equitable and diverse. But the corporate-capitalist jihad to redefine American life by economic metrics alone relies on media-control to wage this war, in which equity and diversity become collateral damage. Former FCC officials themselves, including Chairmen and Enforcement Bureau chiefs, have openly recognized unlicensed broadcasting as a larger problem of public policy beyond whack-a-mole. Given the FCC’s present trajectory, none of this will change, and may serve to make the larger policy problem worse, not better.