REC Position: Those with a "pirate past" directing existing LPFM stations
Let’s be up front on one issue before we continue, many years ago, REC issued a position statement about unlicensed operation of a broadcast station, commonly referred to as “pirate radio”. In that statement, we recognize that the pirate radio movement was one of the issues the FCC was dealing with that helped motivate the creation of the LPFM service and that many who “pirate” do so because they represent a voice that may have been not been able to be represented by licensed radio due to federal regulations. We also specifically stated that we do not condone radio piracy as transmission systems may not use equipment that is of sound engineering practice and due to the lack of coordination in spectrum use (which a license conveys), it could create harmful interference.
With that said, we are aware of the article in Inside Radio, which discusses KXPB-LP, Pacific Beach, Washington. This article discusses how one of the principals had discussed on a Seattle television show who admitted starting an unlicensed broadcast station. The article raised the question on how this person was able to be a party to an LPFM station despite their claimed pirate past.
First, some regulatory and legislative history. In the late 1990s after the passage of the Telecom Act, which deregulated national broadcast ownership, there was a considerable opposition to the legislation because it would allow corporations to come in and purchase radio stations in excess of the previous national ownership caps, thus taking away diversity and local control of broadcast stations in the commercial sector. Unlimited national ownership has always been permitted in the noncommercial sector. As a part of this protest, there was an upsurge in the number of pirate radio operators and some very vocal activists who had sworn to help establish thousands of pirate radio stations in an effort to help retain some kind of locally-controlled radio.
When the FCC was considering the LPFM service, one of the issues that the National Association of Broadcasters stated in their strong opposition to the service was that LPFM would legitimize pirate radio. To address these concerns, the FCC decided in the original Report and Order that in order for someone with a pirate past to be a party to an LPFM application, they must have either voluntarily ceased broadcasting no later than February 26, 1999 without any direction from the FCC or within 24 hours of direction from the FCC. (15 FCC Rcd 2205, 2225-2228 (2000)). This resulted in the original language of §73.854. On Reconsideration, the FCC modified the language so that if anyone was involved in unlicensed radio after February 26, 1999, they would be ineligible, regardless of whether or not they were informed by the FCC (15 FCC Rcd 19208, 19245 (2000)).
This was not good enough for the NAB, who lobbied Congress to pass Section 632 of the DC Appropriations Act, also known as the Radio Broadcast Preservation Act. In addition to the mandate of third-adjacent channel protection, the act also codified language to “prohibit any applicant from obtaining a low-power FM license if the applicant has engaged in any manner in the unlicensed operation of any station in violation of Section 301 of the Communications Act”. The RPBA was implemented by the FCC in the Second Report and Order (16 FCC Rcd. 8026, 8029 (2001)). In the case of Ruggiero v. FCC (317 F 3d. 239 (DC Cir. 2003)), the DC Circuit Court found no basis for sanctioning an automatic, lifetime ban on future lawful speech that applies indefensibly, to only a limited class of unlicensed microbroadcasters and to just the portion of the spectrum created for new voices. This decision would later be vacated by the DC Circuit Court. The RPBA pirate radio language would get carried over to the Local Community Radio Act.
In the 2019 LPFM Administrative Order, §73.854 would be amended to prohibit an LPFM original construction permit application that was dismissed for past piracy from being reinstated with the removal of the person who was engaged in unlicensed broadcasting (34 FCC Rcd. 12519, 12532-12534 (2019)).
The specific station in question filed their original construction permit application in June, 2001, after the Second Report and Order went into effect. At that time, the party of concern was not disclosed as a board member of the applicant, however another female with the same last name was. On LPFM original construction permit applications, a certification question that asks about unlicensed operation appears and the applicant certified back in 2001 that no party to the application had engaged in unlicensed operation. In 2013, the LPFM licensed was assigned to a different organization and in 2021, the license was reassigned back to the original licensee organization. In the 2021 assignment, the party in question was one of the four parties to the application. Unlike applications for original LPFM construction permits, assignment applications do not require the inclusion of a certification that no party to the application had ever engaged in unlicensed operations. We note that on assignment applications handled through REC, we normally do include this certification, even though the Commission has handled hundreds of assignment applications without it.
While we are not aware of any specific ruling from the FCC on this issue, our plain reading of the rule (§73.854) states that it applies only to “an application for an LPFM station”. The RBPA language reads that the law prevents “any applicant from obtaining a low-power FM license” if they have a pirate past. This raises the question of whether an assignment application is considered “an application for an LPFM station” or is considered as “obtaining a low-power FM license”. REC’s position on this is that it should. Likewise, should we also be considering this question every 8 years when a license comes up for renewal as a renewal application is “an application for an LPFM station” and getting a renewal is “obtaining (another) low-power FM license”, especially as board members with a pirate past may join the licensee’s organization.
Even during the original construction permit process, in order to demonstrate that a party had a pirate past, the burden on the Government and any objector is to depend on solid evidence of such operation. In 2013, there were two cases where the FCC denied an objection about an applicant’s pirate past. In Gospel Light Prayer Church, the FCC determined that a newspaper article about a pirate operation was not sufficient to show unlicensed operation. In East Coast Christian Center, a complaint that a Part 15 transmitter was heard past the church property was merely herarsay and there was no support for the objection.
However, in WKMJ Radio Live The People Station, Inc., the FCC had found a §73.854 violation because the party to the application was arrested under Florida’s pirate radio law. An FCC-issued Notice of Unlicensed Operation was also included in the record. In 2020, citing §73.854, the parties of Foundation for a Beautiful Life were advised that they must disclose their unlicensed operation of a broadcast station for any applications filed in the next 10 years. In this case, the applicant had their license application dismissed when evidence surfaced that the station had been operating from an unauthorized location. After the dismissal, the organization advised the FCC they are resuming broadcasting (without a license) in order to serve the Chinese American community due to the COVID19 pandemic, for which the FCC ordered the operation cease immediately. [complete document history]
Those who engage in pirate radio usually fall under one of three categories:
- Those who want to “tinker” with transmitting equipment in order to watch it work (while many like this will play with Part 15 equipment within the tolerances, some cross the line through increased power and/or adding external antennas to Part 15 equipment or using non-certified (Chinese made Amazon/eBay) equipment),
- Those who are doing it in order to fill a presumed programming void on the current radio dial (both in music and political views), and
- Those who are doing it in order to make a profit.
The recent PIRATE Act that can fine unauthorized operators up to $2 million, which was lobbied for by the New York and New Jersey state broadcaster’s associations seems to be targeted towards the high-profile pirate stations intending to make a profit, such as those in Brooklyn. It appears that since its enactment in 2020, there have only been a limited number of actions taken against unlicensed broadcasters and in no case, was the forfeiture amount anywhere near the $100,000 per day (in all fairness, the law uses the words “up to”, which does give the FCC authority to allow for lower fines and for threats of “triggering” larger fines if the party reengages in unauthorized broadcasting). The PIRATE Act also requires the FCC to submit an annual report to the House and Senate committees that cover commerce. As we can see, the FCC had not published an annual report that should have been submitted by January 24, 2022.
The FCC’s enforcement of pirate broadcasters seems to be a very low priority, unless an interference complaint comes in from the FAA or a law enforcement agency. This is currently even a lower priority as the Enforcement Bureau was not allowing field agents to travel for broadcast complaints because of the pandemic. The Enforcement Bureau (EB) has swept the issue of pirate radio under the rug by discontinuing the publication of Notices of Unlicensed Operation to the general public. If EB is doing anything about pirate radio, we don’t know about it. The FCC has recently announced $5 million in funding to fill 15 new positions to help fight pirate radio.
What did we learn from this exercise?
- The pirate radio movement was an instrumental part of the original creation of the LPFM service.
- The federal statute, which is still in effect to this day states that the law prohibits anyone with a pirate past from “obtaining a low-power FM license”.
- §73.854, the LPFM pirate radio rule, is only enforced by the FCC on original construction permit applications filed during a designated filing window and is not enforced on assignments of license, transfers of control or renewal applications.
- In order to demonstrate a violation of §73.854, there must be solid evidence of piracy through an FCC Enforcement Bureau action or in the case of Florida, New York or New Jersey, an action by the state. Complaints depending solely on media coverage, websites and social media reports of pirate radio activity are merely hearsay and unenforceable.
- The FCC apparently has the authority to only enforce the §73.854 pirate radio ban for ten years as opposed to a lifetime ban.
- The PIRATE Act was passed in 2020 and so far, no person has been issued a forfeiture on the higher end of the $100,000 per day cap. Instead, they are being issued menial “hand slap” fines and promises to not do it again.
- The FCC has not published a mandated annual report to the House and Senate Commerce Committees regarding pirate enforcement to cover the year 2021.
- The FCC has dedicated $5 million in funding to hire more employees to address radio piracy.
Going back to the case of KXPB-LP, assuming that the allegations are true, there is nothing the FCC can do in this case because both the RBPA and LCRA seem to have been interpreted as to only impact original construction permit applications and not cases where a past pirate can enter LPFM at an existing station, such as through an assignment of license, a minor (less than 50%) board change or transfer of control. As we have learned from the MB Docket 19-193 exercise regarding LP-250 and using contour protection towards FM translators, the FCC’s interpretation of statute (in this case, the LCRA) is not always consistent with the letter of the law.
Should the FCC revisit §73.854 and apply it to any entry into LPFM, including for stations that already exist (i.e. assignments and transfers)? Yes, they should. Should the ban be for a lifetime? We don’t think it should. The ten-year ban given to Foundation for A Beautiful Life may be a reasonable length of time. We do feel though that the statute, as written, does not allow for a shortened sentence and that the FCC’s handling of FBL violated the LCRA. It is not the first time that the FCC has considered violating the LCRA. MB Docket 20-401 for “”geo-targeted” FM boosters is very fresh on our mind as the FCC trying to gnaw away at the LCRA.
There’s a lot of things we need to change in the LCRA. This exercise has shown that we need to look at those with pirate pasts who may have rehabilitated and for those who have not, the FCC needs to do a better job of taking pirate cases more seriously, especially in cases where there is interference to licensed stations, even interference towards LPFM stations.
For now, despite what may have been said in the news and regardless of any FCC actions (NOUOs, NALs, etc.), the current members of KXPB-LP did not have to make any statement to certify that no party was ever engaged in unlicensed operation and therefore, it would not be appropriate to take action against the licensee on that. It does support a need for a rule change; one which better not delay the LPFM window (it shouldn’t if it only applies to assignments, transfers and renewals).