As Jennifer noted in her report, the FCC observed in a footnote to its NAL that, “the frequency used without authority by Roberts and PCR is 87.9 MHz, which is not allocated to the FM broadcast band.” Over email Jennifer asked me if using that frequency might be any sort of contributing factor for the FCC’s attention, especially in light of an unlicensed operator in Florida recently receiving a $2500 fine for broadcasting on the same frequency.

I was actually a little confused by the FCC’s footnote about 87.9 FM because I’d always understood that the frequency is considered part of the FM dial, though typically not assigned except under special circumstances. In fact, at present there are three stations licensed to 87.9 FM: KSFH in Mountain View, CA; K200AA in Sun Valley, NV, a translator in the Calvary Chapel of Twin Falls, ID CSN Network; and WA2XNX in Brazos, TX, an experimental station licensed to Federal Signal Corporation.

According to the Code of Federal Regulations title 47 section 73.501, “87.9 MHz, Channel 200, is available only for use of existing Class D stations required to change frequency.” These Class D stations are low-power 10 watt stations licensed prior to 1978, when the service ceased to exist. That’s the rule under which low-power high school station KSFH is licensed to 87.9 FM.

So, while it’s true that the Commission generally doesn’t license new stations to 87.9 FM, it’s simply not true that the frequency is not part of the FM broadcast spectrum as asserted in the NAL issued to Pirate Cat Radio. As to the question of whether using that frequency contributed to the FCC targeting Pirate Cat or the aforementioned Florida pirate, I think it’s quite unlikely. The NAL against the Florida pirate makes no mention of the frequency not being a legitimate part of the FM dial.

As far as the Commission is concerned any given unlicensed operator is no different than another. Each field office tends to have its own set of priorities about chasing down pirates, and looking at the list of enforcement actions you can definitely see that each office seems to have periodic bursts of action against unlicensed operators. By and large enforcement actions are complaint-based, and operating out in the open is more likely to result in a complaint than being clandestine.

I suspect that action against Pirate Cat, in particular, came about rather slowly, perhaps influenced by the positive publicity it received and the position of relative respect it has in the community. Of course, these factors will not stop the FCC from taking action against an unlicensed broadcaster; failing to take any action would only serve as an encouragement to others. But I do think that these factors complicate the Commission’s job, causing it to tread a little more carefully.

I think operating an unlicensed station on 87.9 FM is no more risky than operating on any other frequency. The fact that there are very few stations licensed to this frequency makes it attractive for pirates looking for a clear channel and to avoid interfering with other stations. The FCC’s recent decision that FM stations no longer need to protect channel 6 audio on the far left end of the dial may lead to erosion of this opportunity in some areas as more licensed stations encroach on 87.9 FM. Until then, the risk of being a pirate on 87.9 FM is due to being a pirate broadcaster, and nothing more.

Pirate Cat Leaving Terrestrial Radio

It was probably only a matter of time before the FCC would catch up with San Francisco’s Pirate Cat Radio.

The unlicensed broadcaster was increasingly putting itself in the public eye by operating a cafe adjacent to its studio, granting interviews with mainstream press, and even appearing on the national television show No Reservations this August.

Since at least April, the FCC has been monitoring Pirate Cat’s operations and eventually levied the station and owner Daniel K. Roberts (aka Monkey) a $10,000 fine on August 31st when it became clear that the station was continuing to broadcast without a license

Pirate Cat issued a press release on Halloween stating that the station would cease their terrestrial broadcast in light of the FCC’s action against the station. According to the statement from Pirate Cat:

“…the FCC asserted that Monkey, the founder of Pirate Cat Radio, ‘willfully and repeatedly violated Section 301 of the Communications Act of 1934′ and proposed to fine him $10,000 for the infraction… the FCC’s order effectively ends Pirate Cat Radio’s thirteen-year run as one of the Bay Area’s most consistent voices of protest against corporate-run media monopolies and monocultural programming.”

According to the “Notice of Apparent Liability for Forfeiture” document prepared by the FCC, not only was Pirate Cat Radio found to be broadcasting over FM without a license, but the frequency being used, 87.9, is also “not allocated to the FM broadcast band.”

Additionally, the FCC poked holes in Pirate Cat Radio’s previous argument that because the United States is in a state of war, broadcasters can operate without a license. As we’ve discussed before, the belief held by some non-licensed broadcasters that stations are automatically granted an emergency authorization to broadcast from the government during wartime didn’t seem like it would hold up under scrutiny. According to the FCC’s statement:

“The PCR website also mistakenly claims its unlicensed operation is sanctioned by Section 73.3542 of the Rules, 47 C.F.R. § 73.3542. We note that authority to operate pursuant to this Section must be granted by the FCC, and that the burden is on the applicant to show the required ‘extraordinary circumstances’ to support such a grant…There is no record that Roberts and PCR have ever received such a grant of authority from the Commission. Additionally, the frequency used without authority by Roberts and PCR is 87.9 MHz, which is not allocated to the FM broadcast band…”

The FCC’s signal measurements in April also found that Pirate Cat’s broadcast strength far exceeded what would be allowed by non-licensed broadcasters:

“On April 29, 2009, the measurements indicated that the signal was more than 3,000 times greater than the maximum permissible level for a non-licensed Part 15 transmitter in the 88 to 108 MHz band and more than 8,000 times greater than the maximum permissible level in the 76 to 88 MHz band.”

So, for now, Pirate Cat Radio is going to broadcast solely on the Internet as it builds up its case for returning to the terrestrial airwaves. With its over 13-year-history (not all of it from the current location in San Francisco) it will likely maintain its presence, but who knows if it will ever return to FM. Typically the FCC is not too keen on granted FM licenses to those who have previously flaunted the law.

They might take some lessons from the hugely popular and above-board East Village Radio in New York City. Like Pirate Cat they had an unlicensed, terrestrial past as well as a physical presence in their home city. But their success and fame seems to have really skyrocketing after they began channeling their energy into being a for-profit Internet-only station.

Ironically, on the same day that the FCC was issuing its fine to Pirate Cat, the station was celebrating its recent accolade from San Francisco’s Board of Supervisors. From the SF Gate blog “Off the Record,” here’s an excerpt of the letter of commendation:

“…Pirate Cat Radio, in recognition of your trailblazing efforts towards freeing the airwaves from corporate control, providing the community with training in radio broadcast skills, empowering voices ignored by traditional media outlets; and contributing to the advancement of the City’s coffee culture through the unique creations of baristas of the Pirate Cat Radio Cafe; the Board of Supervisors of the City and County of San Francisco, extends its highest commendation!”