Posted on February 2, 2012 by David Oxenford

Pirates, Pirates Everywhere - Fines Up to $25,000 for Unlicensed Radio Stations

For an industry that some say is about to be made obsolete because of its digital competition, there are still many people who want a piece of the FM spectrum.   We've written much about the contest between LPFM and translator proponents seeking their piece of FM spectrum - a contest that we should see resolved by the FCC in the very near future. One topic that we have not written much about is "pirate radio," stations that operate illegally - without FCC authority.  This week, the FCC issued several orders, fining individuals up to $25,000 for operating pirate radio stations in various places around the country (see decisions here and here, and two other fines of $20,000 or more noted below).  Pirate radio has been and remains a big problem for many broadcasters and, despite the fines in cases like this, pirates seem to continue to crop up - especially in urban markets.

The pirate radio problem has always been with broadcasters.  In the past there was both the romance of the outlaw radio operator and concerns over the snake oil salesmen who were broadcasting from stations in Mexico, and there was a famous religious broadcaster who lost a battle with the FCC over the Fairness Doctrine in connection with a real radio station and then resumed operations from a boat off the coast of New Jersey.  But in the last 20 years pirates have been much more localized, low power operators, trying to reach audiences largely in urban areas. Despite a series of court decisions rejecting any First Amendment claim of pirates, and denying any claim that these low-power, local stations did not implicate the FCC's power over interstate commerce regulation, pirates have never gone away.  In many ways, the FCC introduced the concept of Low Power FM stations in the 1990s as a way to provide an outlet for those who might otherwise be inclined to operate an unlicensed station.  In fact, one of the big arguments at the time of the initiation of LPFM was whether former pirate radio operators should be allowed to apply for LPFM stations.

But LPFM has never stemmed the pirate radio tide, as these stations keep cropping up all over the country.  Perhaps LPFM has not been rolled out fast enough, or perhaps it simply is easier to just throw up a pirate station, rather than having to wait for the FCC processes - which, in the end, may not allow for a radio station in a particular community anyway because of interference concerns.  The interference concerns are, of course, the biggest issue - as many full-power stations, which have been purchased for significant sums and which have large audiences, can have real issues reaching these audiences because of pirate radio stations.  The pirates can also threaten public safety, as was the case with one pirate fined $20,000 last week for operating an illegal station that was causing interference to frequencies adjacent to the FM band that are used for FAA purposes.

So what can be done besides waiting for FCC enforcement, which can take time given the limited FCC staff in field offices and the multitude of activities that they must perform - and the difficulty of playing "whack-a-mole" with pirate stations who may shut down in one location, only to reemerge elsewhere a day or two later?  (see this case decided last week, where a pirate was fined once by the FCC, only to start up operations a second time, leading to a $25,000 fine as a repeat operator).  Some states, including Florida, New Jersey and New York have enacted state laws that make operation of a pirate radio station a state crime, so that state and local police can assist in enforcement. In some cases, that has worked very well, but local law enforcement is also tasked with many other priorities and they may not be as familiar with this crime as they would be with issues that they deal with on an every day basis. 

So what is the broadcaster who is facing interference or competition from a pirate to do?  First, he needs to be active in pursuing the matter, providing as much information as possible to the Federal authorities (and to state authorities where state laws apply).  Find out where the illegal signal is originating.  Look for other evidence of the operation (in one case in which a client of mine was involved, the pirate went so far as to have a website advertising its operations). In some cases where owners can be identified, civil suits from owners of program content (like music rights holders) can also be brought to bear. And don't give up, as authorities will usually act when provided enough information about the illegal operations, as these recent cases demonstrate.    
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Posted on October 25, 2008 by David Oxenford

Issues on the Post-Transition Use of the Television Spectrum - White Spaces and Distributed Transmission Service (DTS)

With the final transition of television from analog to digital soon upon us, the FCC has scheduled for consideration at its November meeting two items that will address the use of the television spectrum after the transition - one designed to improve television reception, and the other viewed by television broadcasters as a threat to that reception.  The potential positive development is Distributed Transmission Service ("DTS").  The other proposal - which is far more controversial - is the proposal to authorize "white spaces devices" that operate wireless devices within the portion of the spectrum that will still be used by television stations after the transition.

DTS is the proposal that would allow television stations to use more than one transmitter to reach its service area.  Like the use of FM on-channel boosters, a DTS system would permit stations to use multiple transmitters located throughout their service area, each broadcasting on the same channel, but operating at a lower power than the traditional television station which usually operates from a single high-powered transmitter.  The idea is that, in digital, signals distributed from lower power transmitters spread throughout the service area might be less susceptible to signal impediments from terrain and building obstacles than would a single high-power transmitter.  The FCC proposed adoption of this system several years ago with little opposition, but it has languished.  Some have suggested that the experience in Wilmington, where some people who lived far from the center of the market were having over-the-air reception problems, gave new impetus to DTS as one way to provide better service to these more remote areas.

The second proposal, on white spaces, is far more controversial.  We've written about some of the white spaces issues before, and about one FCC study that found interference problems from these devices.  As these devices operate in the TV band on supposedly empty channels, it is important that they be able to detect television operations so that the devices can protect the TV stations from interference.  Now, the FCC has put the issue on its November agenda, after the FCC's Office of Engineering and Technology ("OET") released a second report which some characterize as demonstrating that the white spaces devices could work in the TV spectrum without creating interference to television reception (or to wireless microphones that also operate in the same frequencies).  However, television representatives have opposed the consideration of this issue without opportunity to comment on this OET Report, arguing that the details of the report show potential interference, pointing particularly at data which, they state, suggests that the white spaces devices have particular problems sensing TV stations operating on adjacent channels and thus could cause interference to these stations.

Thus, broadcasters have been lobbying hard to have the Commission put the issue on hold for further study.  One of the most recent developments was a letter from House Energy and Commerce Committee John Dingell to FCC Chairman Martin, asking a series of questions about the FCC's process - asking if the FCC's engineering report was subject to peer review to suggest any shortcomings, whether the FCC considered licensing these devices so that tracking interference concerns could be easier than with unlicensed mobile devices, and asking for the FCC to account for ways in which it regulates other unlicensed devices and interference issues that may occur ("pirate radio" being included in the list of unlicensed operations about which enforcement history is requested - one area where many broadcasters have alleged that the FCC has often been slow to act to stop illegal operations).  Congressman Dingell has requested the answer to his questions by October 31 - before the FCC's scheduled November meeting.

With this October 31 deadline, we'll see whether Halloween brings a treats or a trick for the white spaces proponents. 
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Posted on November 30, 2007 by David Oxenford

Who Needs LPFM? - Why Not Just Expand the FM Dial?

At last Tuesday's FCC meeting, the Commission adopted a controversial order, over the objection of two Commissioners, that could limit the processing of some applications for improvements by some full power FM stations, and would restrict translator applications, all in the name of encouraging Low Power FM (LPFM) stations to provide outlets for expression by groups that cannot get access to full-power radio stations (see our summary of that action here).  In recent weeks, two ideas have received some publicity providing an alternative outlet for these prospective local broadcasters - and both provide a simple solution (one more immediate and ad hoc than that other), but both leading to the same result - why not just extend the FM band by using TV channel 6?

The current FM band begins at 88.1 MHz, a channel that is actually immediately adjacent to TV Channel 6.  The FCC has for years restricted operations of noncommercial FM stations (which operate from 88.1 to 91.9 on the FM dial) in areas where there are Channel 6 TV stations in order to prevent the radio stations from creating interference to the reception of the TV stations.  That's while you will often find fewer noncommercial stations, or ones with weaker coverage, in communities that have TV Channel 6 licensees.  TV stations use an FM transmission system for their audio.  Thus, you will also find that most FM receivers (especially ones without digital tuners) will pick up the audio from TV channel 6 if tuned all the way to the left of the dial.  The short-term solution to expanding the FM band came from one broadcaster who noted that fact.

In recent weeks, a new FM station has surfaced in New York City - one which is not really an FM station at all, but instead a TV channel 6 operation being programmed like a radio station to emphasize the audio that can be picked up on FM radio dials.  Any FM station in New York would have easily cost many tens of millions of dollars to buy - so instead a new radio outlet was created by taking this low power television station, previously targeted to a narrow ethnic audience, to reach a much broader radio audience in the City.  A unique solution to the search for a spot on the crowded radio dial - and one that will not disappear in 2009 at the end of the digital conversion, as LPTV stations currently have no mandatory digital transition deadline. 

As a longer term solution, why not just take all of channel 6 and use it for FM operations?  That proposal was one that was advanced by consulting engineer Jack Mullaney in Comments recently filed in the digital television proceeding.  In his comments, Mullaney advocates the use of channel 6 (which has not been used by the FCC for digital operations of television stations to avoid interference to noncommercial FM stations, except in a few isolated cases where no alternative digital channel was available, ) for FM operations after the digital television transition has been complete.  As set out in Mullaney's comments, this could increase the FM band by 30 channels (there currently are 100 FM channels), which could create enough spectrum to allow for channels set aside for specific uses like LPFM, without having to worry about interference to full power stations.  Or channels could be set aside just for FM translators.  A section of the band could even be reserved for "pirate" radio - allowing anyone to start a radio station without an FCC license, provided that they stay on-channel and observe specific power limitations.

These innovative solutions to the current perceived scarcity of FM channels would be more advantageous than the Commission's current attempt to repeal the laws of physics by cramming LPFM stations into the existing band without displacing or otherwise interfering with other authorized users - a seemingly impossible proposition.  The proposal has been made - how will the FCC react to Mr. Mullaney's suggestion?
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