Pirate radio is still a problem. While pirate radio was much in the news a decade ago, and was even glamorized in movies, the popular perception may be that it has disappeared. In fact, particularly in major urban areas, it is still a major issue – causing interference to licensed broadcast stations and even, at times, to non-broadcast communications facilities. The FCC yesterday upheld a previously issued $15,000 fine to an operator of an illegal station in Florida, rejecting arguments that the community service provided on the station should mitigate the fine. The FCC, from time to time, releases this sort of fine, yet these stations keep popping up. A number of Commissioners have recognized the gravity of the issue, and that recognition caused the FCC to last month issue an Enforcement Advisory, warning operators that unauthorized broadcasting is illegal, suggesting that the public turn in those who operate pirate stations, and warning those who support pirate radio (e.g. landlords and advertisers) that their support could “expose them to FCC enforcement or other legal actions.” What is the reality of this actually happening?

A few states, including New Jersey and Florida, have passed criminal statutes making pirate radio illegal, but such enforcement, in the few cases that I have dealt with in those states, has tended to be a low enforcement priority for state authorities. Most defer to the FCC, given their perceived expertise in this area. Thus, there has been a recognition that the FCC needs to do more to combat pirate radio, particularly in urban centers like New York where the problem has been particularly acute. I had the privilege of interviewing FCC Commissioner Michael O’Rielly at the Oklahoma Association of Broadcasters convention the week before last. The Commissioner has been an outspoken advocate of more pirate radio enforcement. In addition to early support for public education on the issue, including the issuance of the Enforcement Advisory, the Commissioner suggested that additional Congressional action may be necessary to give the FCC more enforcement tools to really bring pressure to bear on pirate radio operators and those who support them. What tools are needed?

Among the tools that would aid in the fight against pirate radio would be Congressional approval making clear that the FCC can bring enforcement actions (e.g. issue fines) not only against the operator of the illegal station, but also against those who support the station. While sometimes the operator is difficult to ascertain, as operators don’t routinely publicize their ownership and sometimes move their transmission facilities from place to place in a given community. But knowing where they have transmitted from, and who owns that property, is a matter of public record. And advertisers can be identified simply by listening to the station. So authority to go after these participants may well give the FCC a leg up in their enforcement activities.

In a recent trade press article, it was also suggested that the FCC have greater power to seize the equipment of a pirate radio operator. The FCC now has to go to Federal court, get authority to impound equipment used in an illegal broadcast operation, and then get Federal authorities to physically take that action. Having been involved with a legal broadcaster in a case many years ago where the broadcaster was urging this action after a pirate ignored many other FCC attempts to make him stop broadcasting, I know that this can be a prolonged, and even potentially dangerous, activity. Most parties against whom such an order is carried out have already demonstrated their disrespect for the legal process, and physically confronting them to impound their equipment can lead to a confrontation. So, while greater authority in this area may be nice, it still will likely not be a tool used frequently by the FCC. Monetary penalties against supporters seem much more likely to provide easy-to-enforce remedies.

This has become a topic that all Commissioners and all other players in the broadcast community recognize should be an FCC priority – as preventing the chaos that can occur from unlicensed operations was the very reason for the initial creation of the FCC. Watch for more activity in this area in the near future.