By: David Oxenford, Wilkinson Barker Knauer LLP
The PIRATE Act, to crack down on pirate radio, passed the Senate last week after having passed in the House of Representatives last year. It now goes to the President for signature. We’ve written about this legislation several times before (see for instance, our articles here and here). In this final version, it provides more tools for the FCC to crack down on pirate radio operators more quickly, plus it imposes obligations on the FCC to make more regularized enforcement efforts against pirate radio operators, although without necessarily providing any more resources with which to do so.
The bill increases the fine for pirate radio to a maximum of $100,000 per day of operation, to a maximum of $2,000,000. Fines can be imposed on anyone who “knowingly does or causes or suffers to be done any pirate radio broadcasting.” This would seemingly allow the FCC to go after not just the operators themselves, but also those who “suffer to be done” any pirate radio operation, which could possibly implicate landlords who knowingly allow pirate radio operations on their premises, consistent with some recent FCC cases (see, for instance, the one we wrote about here). In addition, the bill allows the FCC to immediately issue a Notice of Apparent Liability (a notice of a proposed fine) without having to first issue a Notice of Violation (a notice suggesting that there is a violation of the rules, but allowing the person accused of violating the rule to first respond before the FCC can issue the proposed fine). The accused party will still be able to argue that no fine should be imposed when it receives the Notice of Apparent Liability (e.g., the party could argue that it had a license or that it did not really broadcast at all, or at a power level that requires FCC approval), but the two-step process currently needed before issuing a proposed fine would no longer be required, thus speeding up enforcement efforts.
Under the bill, the FCC would also need to conduct an annual “enforcement sweep” of the top 5 radio markets based on the amount of reported pirate radio activity in the market, with follow-up monitoring 6 months after each sweep to assess whether the pirates have in fact ceased operations. These sweeps would need to be conducted without disrupting normal pirate radio enforcement activity in other markets. The bill requires all pirate radio enforcement activity to be cataloged and submitted in a report to Congress each year.
The bill would also prohibit the FCC from taking any action to preempt any state law that targets pirate radio, such as the laws in Florida, New Jersey, and New York which make such activity illegal under state law. The bill also directs the FCC to coordinate with the US Attorney’s Offices and the US Marshall’s office to collect fines and seize equipment – powers that already have been used by the FCC to act against pirate radio operators (see, for instance, our article here about the seizure of pirate radio equipment).
Bigger fines and quicker enforcement actions, plus calls for the closer monitoring of FCC action so that future FCC administrations cannot retreat from the commitment to enforcement shown by the current FCC, seem to bode well for broadcasters looking for protection against pirate radio operators. We’ll watch as these new penalties are rolled out when the Act becomes law.
David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).
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