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Puzzling Anti-Pirate Radio Proposal from FCC Commissioner O’Reilly

Despite years of enforcement action and the establishment of low-power FM, unlicensed pirate radio has not gone away, though it hardly qualifies as a runaway problem or nationwide epidemic. True, there are some hotspots with a high density of communities underserved by local broadcasters–such as Brooklyn, NY and South Florida–where unlicensed broadcasting is arguably more rampant than during the height of the civil-disobedience oriented micropower radio movement in the late 1990s. But in most of the country unlicensed broadcasters are harder to encounter, and rarely more than a nuisance to licensed broadcasters.

Nevertheless, Republican FCC Commissioner Michael O’Reilly recently published a blog post offering up “a new way to combat pirate radio stations.” His idea is to let licensed broadcasters sue pirates for any interference they might cause. O’Reilly’s inspiration is the CAN-SPAM Act of 2003 which gives internet service providers some limited ability to take civil action against email spammers who clog their servers and networks.

At John Anderson very deftly exposes the absurdity of O’Reilly’s proposal, noting that CAN-SPAM hasn’t been particularly effective, since the average person needs the Federal Trade Commission or state Attorney General to act on their behalf. On top of that, the majority of suits against spammers have been lost.

O’Reilly says that his proposal “may require change in current law,” obviously requiring cooperation from Congress. I’m going to harp on his hedge here, since I would expect an FCC Commissioner to know, or at least have an informed opinion about, whether his proposal requires legislative action. I actually wonder if it does. Not that I want to encourage broadcasters to start hauling pirates into court, but if a broadcaster could demonstrate actual harm I don’t see why suit couldn’t be filed. Whether or not the suit proceeds would be up to a judge, of course. But I don’t know of any prior attempts to do so.

If a licensed broadcaster wanted to drag a suspected pirate into court now or under some supposed future statute it would probably be an uphill climb. On top of demonstrating economic harm attributable to the pirate, the broadcaster would have to gather enough proof to show that the person being sued is actually responsible for the unlicensed broadcast, and that the broadcast is actually illicit.

A real risk with this approach is that it could be used frivolously. Imagine a torqued off station owner with a personal beef going after someone running a legal low-power Part 15 transmitter on his own property, alleging a little bit of interference on car receivers driving by the guy’s house. Then imagine the broadcaster going at it with all sorts of trumped up engineering data with the hope that the court won’t have the expertise to cut through it. Even if the broadcaster isn’t able to prevail in court, having to mount a costly legal defense would be harassment enough for the person with the Part 15 transmitter.

That said, people drag each other into court for all sorts of frivolous reasons everyday. While I pose this potential with suspected pirates, the cost-benefit ratio likely would be weighed too far in favor of cost to be worth it for most broadcasters. Moreover, the most flagrant and easily-found pirates will probably be those least likely to respond to a civil lawsuit in the first place, and therefore the hardest to deter or collect a judgement from. The FCC’s own record on collecting on fines is pretty abysmal, so it’s hard to see how civil proceedings would be any more effective.

That’s why O’Reilly’s proposal is puzzling. What’s his true reason for offering it up, and why now? He hedges so much in his conclusion–saying he doesn’t want to be seen supporting more lawsuits, “and certainly not more class-action suits,” as well as opposing listeners having a right to sue–that it’s hard to even make a case that he’s making some kind of pseudo-libertarian free-market argument that broadcast license holders ought to have more property rights.

Realistically, radio pirates and legal low-power Part 15 broadcasters alike can rest just as easily as before this blog post was published. It barely qualifies as smoke, never mind fire. Really, it’s just a little thought experiment to give all us radioheads something to distract ourselves with for a few minutes.


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4 Responses to Puzzling Anti-Pirate Radio Proposal from FCC Commissioner O’Reilly

  1. John Anderson April 13, 2015 at 7:08 pm #

    I think if a broadcaster brought a civil suit against a radio pirate, that court would say, “there’s already a mechanism for this called the FCC” and punt. If I were being sued experimentally, I’d say, “this is in the jurisdiction of the federal courts,” and seek dismissal.

    One of the things the enforcement downsizing proposal (reportedly) suggested was outsourcing some enforcement duties to the private sector. I’m not conspiratorial enough to suggest O’Reilly’s sent up an outer-limits trial balloon…primarily because he wrote such nonsense.

  2. Paul Riismandel April 13, 2015 at 9:52 pm #

    I think you’re right, John, that the jurisdictional argument would win at this time.

  3. Bill DeFelice April 16, 2015 at 12:40 pm #

    The thing I think gives me worry is this allows a licensed broadcaster to simply harass a Part 15 broadcaster, be it a hobbyist, educational institution or a business using legal, license-free low power broadcasting. Most hobbyists aren’t going to be equipped to battle against the Goliath corporately-owned stations who may want to claim that some little 100-milliwatt AM hobbyist is stealing their target demographic audience.

    I wrote to Commissioner O’Reilly last week and have received confirmation of my communication arriving in D.C. I’m hoping that he’ll take the time to reply and address the concerns of Part 15 enthusiasts (using a tenth of a watt on AM) being lumped together with the blatant pirates typically using tens, hundreds or thousands of times much more power on FM – not to mentioned causing intentional interference with licensed broadcasters. Now, if this is all left to the stations to decide they could sue anybody and everybody including the guy whose iPod transmitter covers more than inside his car!

  4. Anonymous April 19, 2015 at 5:13 pm #

    I just came across this article today and found it most interesting. In a recent (last week) conversation with an FCC enforcement official concerning a pirate station, I was told that enforcement division was told (by Washington) to issue a written warning and then, unless there was evidence of interference with another broadcaster or they were airing obscene content, to just leave it alone.

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