PIRATE Act

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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.…

Continue Reading Two Million Dollar Fine for Pirate Radio – Don’t Cross the Commission Again After You’ve Been Caught Once, Especially as More Enforcement Appears to be on the Way

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • Follow field testing by GeoBroadcast Solutions of its zonecasting system, the FCC opened a new comment period for interested parties

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The FCC yesterday made public four letters to landowners warning them that there were unlicensed FM radio operations coming from their properties and warning that, if the transmissions continued past the 10-business day response period, the landowners could be held liable for penalties up to $2,000,000 for the unlicensed operations coming from their properties.  The…

After a long winter, spring has finally arrived and has brought with it more daylight and warmer temperatures—two occurrences that do not necessarily pair well with keeping up with broadcast regulatory dates and deadlines.  Here are some of the important dates coming in April.  Be sure to consult with your FCC counsel on all other important dates applicable to your own operations.

On or before April 1, radio stations in Texas (including LPFM stations) and television stations in Indiana, Kentucky, and Tennessee must file their license renewal applications through the FCC’s Licensing and Management System (LMS).  Those stations must also file with the FCC a Broadcast EEO Program Report (Form 2100, Schedule 396).

Both radio and TV stations in the states listed above with April 1 renewal filing deadlines, as well as radio and TV stations in Delaware and Pennsylvania, if they are part of a station employment unit with 5 or more full-time employees (an employment unit is a station or a group of commonly controlled stations in the same market that share at least one employee), by April 1 must upload to their public file and post a link on their station website to their Annual EEO Public Inspection Report covering their hiring and employment outreach activities for the twelve months from April 1, 2020 to March 31, 2021.
Continue Reading April Regulatory Dates for Broadcasters: License Renewal, Issues/Programs Lists, EEO, Webcasting Royalties and More

Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.  Also, we include a quick look at some important dates in the future.

  • The Enforcement Bureau advised broadcasters (and other

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Here are some of the regulatory developments in the last week of significance to broadcasters -and a few dates to watch in the week ahead – with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC issued an order that locks in its

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Pirate radio operators continue to be a problem – particularly in major metropolitan areas.  The week before last, the FCC resolved two long-pending cases against pirate operators through negotiated settlements.  In one case, the FCC last year initially proposed a fine of $151,005 for the illegal operation.  After examining the operator’s finances, the Bureau agreed…

Here are some of the legal and regulatory actions of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC released a Second Report and Order and Order on Reconsideration regarding Next Gen TV (ATSC 3.0). The Report and Order provides guidance on how the Commission will evaluate petitions for waiver of the local simulcasting rules for broadcasters deploying ATSC 3.0 who cannot find a partner station to broadcast its signal in the current transmission standard, declines to allow broadcasters to use vacant in-band channels for voluntary ATSC 3.0 deployment, and clarifies that the “significantly viewed” status of an ATSC 3.0 station will not change when that station moves its ATSC 1.0 simulcast channel to a host facility.  The Order on Reconsideration denied petitions challenging aspects of the Commission’s 2017 Next Gen TV order, including issues dealing with the local simulcast requirement, the application of retransmission consent rules, patent licensing issues, and sunset of the obligation to use the current transmission standard for ATSC 3.0 (that sunset allowing the new transmission mode to evolve over time without the need for FCC action).  (Second Report and Order and Order on Reconsideration)
  • The Commission granted a waiver to a Jacksonville, Florida TV station, allowing it to complete its post-incentive auction move to a new channel by September 8, beyond the current July 3 end of Phase 10 of the repacking of the television band when all TV stations were to have moved to their post-transition facilities. Because of issues related to COVID-19 and other technical matters, the Commission granted this extension and authorized its Media Bureau to grant similar relief to other stations suffering from similar delays (Order)
  • Two members of Congress wrote a letter to FCC Chairman Ajit Pai urging the Commission to “halt any increases to annual regulatory fees due in 2020 for broadcast licensees.” Ann McLane Kuster (D-NH) and Chris Stewart (R-UT) wrote in their letter that this action requires no congressional action and would help alleviate some of the economic hardship suffered by stations due to the COVID-19 pandemic.  The Members noted that broadcasters are a critical component of the pandemic response by, among other things, informing and educating Americans about public health guidance.  (Letter).  The NAB, as well as a group of state broadcast associations, also filed comments at the FCC opposing the FCC’s proposal to increase broadcast regulatory fees, arguing that broadcasters’ fees should not increase in relation to the fees paid by other industries regulated by the FCC, particularly as broadcasters have been so hard hit by the economic fallout of the pandemic. (NAB Comments and State Association Comments)
  • Last Monday, the reply comment period closed in the FCC’s Significant Viewing proceeding. Designation as a significantly viewed station has implications for determining whether a cable or satellite TV system will carry a TV station in an area that is not part of its home market.  For an in-depth look at what the FCC seeks to resolve through this proceeding, see this post at the Broadcast Law Blog.  (Reply Comments)
  • On Tuesday, the Senate Commerce Committee held a hearing considering the re-nomination of FCC Commissioner Michael O’Rielly to a new five-year term. The Commissioner, in response to a question, noted that he believes the FCC’s and DOJ’s current media competition rules are “problematic,” and that he hopes to work with DOJ to shift its narrow view of the competitive marketplace where it does not recognize that broadcasters  don’t just compete with other broadcasters, but instead directly compete with a wide range of other media companies, including digital media outlets.  (Opening Statement and Archived Video)(see Broadcast Law Blog articles here and here on the competition between broadcasters and other media and how the assessment of the definition of the marketplace is important to the evaluation of broadcast ownership limits)
  • The Enforcement Bureau acted last week against two pirate radio operations, one in Pennsylvania and one in Arkansas. These actions are reminders that broadcast operators must hold a valid license to operate and that the FCC will pursue illegal operations.
    • In the first case, the Enforcement Bureau shut down a station that was broadcasting on 90.7 MHz and 91.5 MHz from Stroudsburg, Pennsylvania. The operator, as part of a consent decree, admitted to the unauthorized operation of the station, agreed to pay a $1,500 civil penalty, and agreed to not operate an unauthorized station in the future.  The PIRATE Act, signed into law in early 2020, gives the FCC authority to fine pirate radio operators up to $100,000 per violation (with a $2 million cap), but, in this case, the operator claimed an economic hardship, which persuaded the FCC to lower the fine to $1,500.  (Order and Consent Decree)
    • In the second case, the Enforcement Bureau issued a $10,000 fine to an operator for the unauthorized operation of a radio station on 103.1 MHz in Alma, Arkansas. (Forfeiture Order)
  • The US Court of Appeals upheld a lower court order throwing out a rule adopted by the Department of Health and Human Services that would have required all TV advertising for prescription drugs to state the wholesale price of the drug. Based on these court decisions, this additional information will not need to be added to the disclaimers that these ads already contain. (Court Decision)(Broadcast Law Blog article on the decision)

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Continue Reading This Week at the FCC for Broadcasters: June 13, 2020 to June 19, 2020

The PIRATE Act, to crack down on pirate radio, passed the Senate this 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. …
Continue Reading PIRATE Act Passes Senate, and Now on to the President for Signature – Provides for Big Fines and Enforcement Sweeps in Big Markets