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Hey radio pirates, think twice before you invoke emergency authorization

There are all sorts of pirate cats, everywhere.

There are all sorts of pirates, everywhere.

There’s another pirate radio station on the loose: FCC Free Radio in San Francisco. Jennifer Waits wrote a nice piece about it here on Thursday. I’ve been streaming the outlet for the last few days and it’s a fun signal with a big sense of humor.

But I’m getting a little tired of these unlicensed stations that fall back on the argument that an obscure corner of the United States Code gives them the right to transmit over the public airwaves, FCC Free Radio the latest. “We believe that Title 47 Section 73.3542 of the U.S. Code of Federal Regulations currently allows FCCFREE RADIO 107.1FM to legally broadcast with out a formal license from the FCC,” the signal’s information statement declares. The aforementioned clause says that the government will grant temporary broadcasting authority in “extraordinary circumstances”—life threatening situations, a national emergency declared by the President or Congress, or during time of war.

I consider myself a big supporter of the expansion of Low Power FM, but this argument, first served up by Pirate Cat radio, is kind of dodgy and even a little sleazy. “Thanks to George Bush for declaring the ‘War Against Terrorism’,'” Pirate Cat’s page declares, “and U.S. Code of Federal Regulations title 47 section 73.3542, it is now technically legal to operate a radio transmitter with out a formal license.”

At minimum, folks who invoke this loophole should be aware of the fact that the Federal Communications Commission has rejected the claim in an actual pirate radio case. And on top of that, if you take the public interest obligations of radio stations seriously, Section 73.3542 should be taken seriously too, and not just used as an excuse to DJ and yuck it up about sex, which is pretty much what I get from FCC Free Radio every time I tune in.

The Power 103 case

As mentioned, the FCC has already given this rationale the old heave ho. In April of 2006, somebody tipped the agency off about an unlicensed signal operating out of Bettendorf, Iowa. Commission field agents cruised by the office building from where it seemed likely that the station was broadcasting. The engineers did their scanning and picked up the signal at 103.3. The investigators went to the top of the structure, and sure enough, there was an antenna mounted on the roof.

So they asked around the building, and discovered that the station, “Power 103,” even had an office. They spoke with the Power 103’s promotions director, who “stated that the radio station did not need a license because the station operated pursuant to ‘the War Powers Act’,” the FCC’s record of the discussion explains.

This did not impress the Commission, which on June 9 issued a Notice of Apparent Liability to Power 103 for $17,000. The “apparent” part of the Notice means that the victim has the right to appeal the decision, and the Commission will reconsider the case. That Power 103 did, insisting that the station had, in fact, applied for a license under Section 73.3542, and so didn’t have to pay the FCC any stinkin’ fine.

That they had, but not until after the FCC had paid Power 103 its little visit. First the station filed something with the Kansas City FCC Office along with its response to the NAL. Then it submitted what it considered to be a more serious application with the agency’s Washington, D.C. digs in June.

The problem with this, as the FCC noted in its final decision, is that Section 73.3542 requires you to get permission from the Commission to broadcast on an emergency basis, which sorta kinda implies that you apply first, then broadcast after you get the green light. Remember, it’s called “emergency authorization ,” right? The language says”authority may be granted, on a temporary basis.” In fact, most of the statute explains how to apply to the FCC for the permit.

So, not surprisingly, the Commission experienced Power 103’s rationale as totally bogus.

“We find that [promo director] had no authority to operate his radio station under Section 73.3542 of the Rules because there was no evidence he had ever made proper application to the Commission under that rule, and, even if he had, no authorization has ever been granted to him to operate that station. . . . Even if he had applied, the act of applying for a Commission
broadcast license confers no authority to operate on the applicant and does not bar the  Commission from enforcement action if an applicant chooses to operate without authority.”

Throw me a bone here

Ok. I know what your response is to my party pooping, rain-on-your-pirate-parade commentary. You hate the FCC and think it’s a fascist, repressive, Dr. Evil institution, and anything you can come up with to confound its nefarious ways is ok, as far as you are concerned. So screw me, Mr. Boring.

Fine. But one of the main reasons why the FCC gives out special temporary authority permits is to help communities deal with real life threatening emergencies. During Hurricane Katrina the agency cleared the decks and kept its operations running 24/7 so that its could fast track STAs in the Gulf Coast. And LPFMs really came through, most famously WQRZ of Mississippi. We really need radio stations that are committed to providing public safety information, a service that most commercial signals have almost completely abandoned.

So what’s the difference between some pirate operation invoking Section 73.3542 without showing any evidence that it really wants to provide emergency services, and the big commercial broadcasters gaming the FCC’s license allocation rules to pick up signals in rural areas that they have no intention of adequately serving?

None, as far as I’m concerned.

So if you’re going to go the Section 73.3542 route, at least take one of these measures to show that you’re better than a Clear Channel lawyer.

Three EZ steps

First, apply for a 73.3542 license before you go on the air. Hey, if you are going to hide behind this law, don’t you think you should obey it? Second, if you are already broadcasting, at least file for the permit before the cops come knocking on your door, and not afterward like the guys at Power 103 did.

Admittedly this is a bit of a Catch 22, because you are, in effect, tipping the FCC off to your operation. But the chances are that, if you are streaming out of a big metro area, they’ll eventually find you anyway.

Third, if you go the emergency authorization route, make a serious high profile effort to provide programs about real and possible emergencies in your area: war or civil liberties threats, earthquakes, hurricanes, pandemics, toxic industrial sites, whatever and however you want to call the issues. And document your  programming. Keep a record of it. If you do this, your station will really stand out as far more useful than most of the licensed signals in your region. And, whether you filed with the FCC or not, you’ll have a stronger justification for your operation in the event of a fine, at least when the fight hits the media.

If you don’t want to do any of these things, no problem. Just don’t put Section 73.3542 on your Web site. As you know, when the yogurt hits the fan, the FCC probably won’t buy it anyway. And you don’t really believe in it either. So since you started a pirate station because you can’t stand lies, don’t start with one.


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2 Responses to Hey radio pirates, think twice before you invoke emergency authorization

  1. diymedia July 20, 2009 at 3:42 pm #

    Amen to that. This is a dubious loophole. The only station that I know has “followed the rules,” per se, is Free Radio San Diego, and that hasn’t stop them from getting harrassed by the FCC (though it hasn’t escalated past the occasional visit and Notice of Unlicensed Operation).

    During the 2002 Mosquito Fleet in Seattle, we had one of these on hand for every operating station, but it was more of a stopgap to get the FCC out the doorway and give us time to vamoose before the enforcement bureaucracy did its thing.

  2. C October 7, 2012 at 8:07 am #

    Are we at war, or are we not at war? If we are not at war, then we should not have any military troops in combat inside foreign countries… but we do… so clearly, we are at war. And if we are at war, then the radio waves need to be available to anybody to broadcast because we are in an emergency situation. People of our country are shooting at other people outside the country, so a state of war clearly exists. If it does not, then those people should be removed from said country and have no business in it.

    I personally don’t think the FCC has any authority whatsoever to regulate the radio spectrum, because it is a commons that belongs to the whole world. Should I need a licence to shine a flashlight uip into the sky. Absolutely not. Likewise, I don’t need a license to transmit radio waves up into the sky. As long as I am polite and not shining the flashlight in your face, or broadcasting my signal over someone else’s signal, then I am golden.

    Further, there is no victim in this “crime”. You can’t have a crime without a victim… why this fact is lost on American’s is beyond me… its so incredibly elementary. If you can find a victim that can testify against FCC Radio and explain how they were damaged or harmed by FCC Radio, then perhaps you have a case… but my guess is, nobody was. So who is going to get up in the witness stand and testify as the victim? An FCC agent? Can they provide evidence that they were somehow harmed?

    Are they going to argue the public good was harmed? Can we get the public good on the stand, or the public itself. I’d like to see it. One is a dubious concept, the other is several million people.

    This is why the world thinks Americans are brain dead stupid when it comes to letting their government walk all over them… they don’t understand the very basics of arguing to defend freedom. Its almost as if Americans search out some authority to suplicate to, and if they don’t have one, they create one, or at least the boogie man of one.

    From what I’ve read of real life stories, the FCC are nothing but a bunch of poser guys going around pretending to be the FCC, with a spectrum analyzer and searching the pirate groops, simply to stage fake raids and steal radio equipment. The idiot pirate transmitter guys think they got off lightly, and never transmit again out of fear, and these fake FCC posers make off like bandits with some very expensive HAM equipment each and every time. Americans are a bunch of rubes.

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