Paper Tiger Apes Big Bad Wolf

The FCC’s taking a cue from the Three Little Pigs, huffing and puffing about the work it’s doing to combat the “problem” of pirate radio. Just in time for the National Association of Broadcasters’ annual Radio Show in Austin, the FCC’s gone on an enforcement spree of sorts over the last month or two.
With 158 enforcement actions on the books at the end of August, the agency is now on pace to meet or exceed the number of actions it took against unlicensed stations in 2016. For the eight years we’ve experienced of this decade so far, 2017’s enforcement-trajectory seems on target to rank as third or fourth-busiest.
Field agents have traveled far beyond the most popularly-recognized East Coast “hotspots” this summer. Arkansas gets on the board for the first time in the history of our Enforcement Action Database, while the closure of the Seattle FCC field office made it San Francisco and Los Angeles-based agents’ responsibility to visit Alaska in pursuit of a Baptist church – the first time since 2013 that the FCC’s made waves there. (Alaska is the 36th most active U.S. state/territory for pirate radio, just behind FCC Chairman Ajit Pai’s home state of Kansas.)
This year, agents also popped in on stations in Indiana, Nebraska, and North Carolina, among others. Based on the Database, the only state the FCC has yet to visit for anti-pirate purposes, at least in the last two decades, is Mississippi.
There have also been some mildly interesting tweaks to the enforcement protocol. Times between the initial station-visit and the sending of a Notice of Unlicensed Operation via certified mail varies by office, and ranges from as little as a week to several months – the latest batches of NOUOs from New York and Florida show a 1-2 month lag.
The language used in NOUOs is also being standardized. Before, field offices would generally provide some indication of how the pirate appeared on their radar, most often due to the receipt of a complaint or exposure in the news media. In some cases, FCC agents would even identify the complainant.
This has been replaced with more nebulous boilerplate, such as, “On [date], agents from the [location] field office investigated an unlicensed FM station operation on [frequency] in [location],” or “On [date], agents from the [location] field office confirmed by direction finding techniques that radio signals on frequency [x] were emanating from [location],” along with supplemental information. NOUOs now do often include whether or not the FCC actually spoke with someone when they visited, and a surprising number of those being warned do fess up when agents come knocking.
Both the FCC and radio industry are playing this up as “progress” in a ramped-up “war” on unlicensed broadcasting. This would be true were it not for some pesky details.
As our Database counts each visit and official correspondence (NOUO, NAL, forfeiture, raid, seizure) as a separate enforcement action, the sheer number of actions doesn’t necessarily correlate to more stations being pounced upon. It’s not uncommon for field agents to make two or more visits to a station over the course of a month or more before they actually drop a certified letter on it. In addition, agents will often send duplicate letters to any parties they suspect of being privy to the pirate broadcast; this often includes multiple potential operators, property owners/landlords, and businesses that may share space with a station.
Due to this duplication, the FCC may conduct as many as five or six enforcement actions against each station it’s made aware of. For example, if the FCC visits a station three times and identifies two operators and the property owner, it’ll generate two or three NOUOs as well. Multiply this number if field agents go through these motions more than once because the pirate moves locations or goes dormant for a spell. Interestingly, this practice seems most prevalent in the FCC’s busiest field offices (NYC and Miami), which further skews the enforcement-statistics to present an inflated picture of FCC activity on the ground.
Some of this inflation is obvious, such as the case of agents in Florida issuing separate NOUOs on the same pirate a day apart (not counted here as separate enforcement actions). In other cases, agents in the same office may only go partway, as happened in two instances last month in which the property owner was identified but the actual station operator was not.
Duplicative enforcement actions create the perception that the FCC is doing more than it is, but the true test of whether any of it is meaningful is expressed in its deterrent-value. If Chairman Pai et al. want to really ramp up the propaganda-value of this activity, they can “escalate” enforcement to the issuance of monetary penalties and attempt to collect $10-25,000 on each case. In Pai et al.’s policy-world, in which economics trumps all, this seems lke a no-brainer.
If only the limits of the FCC’s authority included being able to collect such debts! We get no better example of this than the case of Kacy Rankine. This New Jersey-based broadcaster first came to the FCC’s attention in 2005, when someone complained about his pirate FM station in Newark. After visits in November and December, Rankine got a Notice of Unlicensed Operation about his station on December 6 of that year.
The station stayed on. So the FCC visited again four times in January and February of 2006, then sent Rankine and another party more NOUOs on March 3. No effect.
Agents made three more visits in April, May, and July, before finally hitting Rankine with a $10,000 Notice of Apparent Liability on November 3, 2006 – one year minus two days from the FCC’s first visit to his station.
On January 26, 2007, the FCC formally fined Kacy Rankine $10,000 for his operations in Newark. This case involved a total of 14 enforcement actions (9 visits, 3 NOUOs, one NAL, and one forfeiture) over 14 months.
Did Rankine ever pay his fine? There’s no record of this, and considering that the agency historically only collects on less than a quarter of its pirate radio cases, the answer’s probably no.
Whatever transpired, it had little deterrent effect based on Rankine’s reappearance in the Enforcement Action Database this year. On July 19, NYC-based agents paid a visit to Paterson, New Jersey, just 15 miles up the Garden State Parkway from Newark. They found a station calling itself “Roadblock Radio” on Rankine’s old frequency (90.1) and identified him as its operator.
Agents issued a boilerplate NOUO to Rankine on August 28, which admonishes you to stop broadcasting “IMMEDIATELY” or else face “severe penalties, including, but not limited to, substantial monetary fines, in rem arrest action against the offending radio equipment, and criminal sanctions, including imprisonment.” Already bereft of tools beyond threats, the FCC also apparently lacks an institutional enforcement memory. Kacy knows the score: will a second most likely uncollectable fine turn the tide in this case?
If Rankine wanted to, he could shadowbox the FCC by adopting techniques long-practiced by his UK cousins: separating transmitter from studio, lining up alternate broadcast locations in the event things get blown, and generally making field agents waste more time, energy and resources than the enforcement payoff is worth.
I’ve learned over the years that policymaking is the art of speaking in symbols that have real-world implications, and the policymaking process often breaks down when the translation between symbol and reality fails. This was the case with the U.S. digital radio transition, in which the FCC was sold a vision for radio’s future that has not yet been meaningfully implemented nearly two decades on.
The same breakdown has occurred with the agency’s handling of the pirate “problem” over the same time-frame, and this won’t be fixed by huffing and puffing at trade shows or generating more files in the short term.
Also keep in mind that the FCC’s enforcement resources are finite and already stretched thin, so this “war” on pirate radio forces the Enforcement Bureau to de-prioritize other elements of its mission to preserve spectrum integrity. As captured regulators will do, this particular FCC campaign is driven by the dominant political winds, but in the Trump era you can’t really predict just how far it’ll go to do its masters’ bidding.
As Pai has proposed net cuts to the FCC’s budget which neglected adequate enforcement funding, and the government itself may be shut down soon over even higher-stakes political theater, it’ll be interesting to see how the agency explains why the pirate-house is still standing despite its roar. The mutual industry/agency fellation this week in Austin won’t change this. Perhaps the parties involved should have read the fairy tale all the way through before aping it.