This week, the FCC released two Notices of Apparent Liability proposing to impose big fines on two pirate radio operators. Using the enforcement tools – particularly the higher fines – authorized by the PIRATE Act passed by Congress in 2020, the FCC proposed a to impose a fine of $2,316,034 on one alleged operator of a pirate radio station in the New York City area, and a fine of $80,000 fine on another operator of a pirate station in Oregon. We’ve written in the past about the FCC sending warning letters to landowners and pirate radio operators threatening big fines if they don’t cease operations (or, for landowners, if they don’t force their tenants to cease illegal operations). But, as noted in the FCC’s Press Release, this is the first time since the adoption of the PIRATE Act that the FCC has gone beyond the warning phase to issue these notices of multimillion dollar “forfeitures” (fines) on pirate operators and, in the New York case, use the full force permitted by the law to levy the multimillion dollar fine. Theoretically, the alleged pirates could respond to the Notices and contest the fines, but the FCC’s decisions seem adamant that these operators should be paying a substantial penalty. It is probably no coincidence that these Notices were issued a little over a month after the FCC sent its annual report to Congress on its activities under the PIRATE Act, promising increased efforts to combat pirate radio in the new year.
The New York pirate appears particularly brazen, prompting the largest fine yet levied against a pirate radio operator. According to the Notice of Apparent Liability, two individuals have operated a pirate radio station in the New York borough of Queens for over a decade. In 2013, the FCC’s Enforcement Bureau issued three Notices of Unauthorized Operation to the operators, warning them that their operations were illegal and needed to stop. In 2014, agents personally confronted one of the operators who admitted ownership of the equipment, and again told him to stop operating. When operations continued, a proposed fine of $20,000 was issued in 2015, but never paid or contested. In 2016, as operations had continued, Federal Marshalls seized the station’s equipment. Yet the pirate came back and continued operations – even using a website and social media to promote programs hosted by the two individuals named in this week’s Notice. The FCC emphasized that the repeated, ongoing nature of the violation even after multiple warnings and prior government action prompted its substantial fine. The PIRATE statute limits fines to $2,316,034 – otherwise, the FCC would have proposed a fine ten times larger, given the nature of the violation and the pirate’s apparent disregard of the FCC’s prior attempts to enforce the law.
The FCC’s Press Release highlighting the severity of both pirates’ conduct and the amount of the fines. It should be noted that these high penalties not only are a warning to pirate operators; the size of the fines may increase their effectiveness by making their enforcement more likely. The FCC itself cannot sue to collect fines or take actions against individuals who ignore the penalties issued in cases like this. Instead, the FCC must rely on the US Attorneys Office to enforce the penalties in Court, to seek judgments against those who do not pay, and to take collection actions if those judgements are ignored. For smaller penalties like the $20,000 fine imposed against the New York pirate in 2015, the local federal attorney’s office may not believe it is worth it to invest time and effort in trying to collect. A fine exceeding two million dollars may well get more attention and local action.
The Notice of Apparent Liability against the Oregon pirate states that he was warned personally by an FCC agent in 2018 that his operations were illegal, that he surrendered his transmitter to the agent, and that he received a written notice that his operation was illegal and could render him liable to financial penalties and even jail time should he operate without authorization again. However, a year later, the FCC again found him to be operating illegally. He again surrendered his transmitter to an agent and again received oral and written warnings to stop operating. Then, it happened again in 2022. This time, after his wife surrendered transmitters to the FCC agents, the pirate posted to social media that he was continuing to operate and would not be shut down unless the government “locked him up.” Later that year, the FCC issued a notice to the landowner of the property on which the pirate was operating to cease operations, using the PIRATE Act’s authority to hold a landowner liable if a pirate radio station is found to be operating from their property. That apparently got results, as the landowner forwarded to the FCC a letter from the pirate promising that they would not operate an unauthorized station and, when FCC field agents checked again, the pirate was not operating. The FCC imposed the $80,000 fine in the Oregon case, lower than the NY case, possibly because the pirate was no longer operating.
These notices detail the FCC’s investigatory operations to find and identify pirates when complaints are received, and the FCC’s willingness to impose substantial penalties, particularly on repeat offenders. The PIRATE Act not only authorizes high fines, but also mandates routine enforcement sweeps by FCC authorities in areas where there is a high incidence of pirate radio operators. The New York case notes that sweeps and other enforcement actions were slowed during the pandemic, when the FCC greatly restricted employee travel. But the FCC’s January report to Congress shows that you can expect that the FCC will be ramping up its enforcement activities. The report notes that the FCC was given additional funds in 2022 to hire more field agents to enforce the PIRATE Act and to buy new “customized mobile direction finding investigative vehicles.” The FCC promises more sweeps and more actions against landowners in the near future. So, while these big fines may be new, don’t expect that they will be the last actions against pirate radio as the FCC’s enforcement ramps up.