Radio Survivor

Pirate radio has been a favorite topic of mine since I first built a little AM transmitter from a Radio Shack kit as a kid. In the mid-90s, just as the microradio movement started to take off with inspiration from Human Rights Radio’s Mbanna Kanatko and Free Radio Berkeley’s Stephen Dunifer, I started to follow unlicensed radio more closely, and have ever since.

In these nearly fifteen years of study I’ve become very used to the typical misconceptions that turn up both in the press and among pirates themselves. They range from the myth that pirate stations interfere irreparably with airplane to communications to the ill-founded belief that the so-called “emergency authorization” clause in federal regulations can be used to defend unlicensed broadcasting.

Radio pirates in 48 states don't even need a Get Out of Jail Free card.

One of the most pernicious misconceptions turned up in a recent interview with John Miller of FCC Free Radio right here at RadioSurvivor. In explaining the various reasons why he decided to end unlicensed broadcasting in favor of being online, Miller told Jennifer Waits, that “Unfortunately people [pirate broadcasters] go to jail now.”

To be fair, Miller is not entirely mistaken with this assertion. Currently there are two states, New Jersey and Florida, with laws on the books that make unlicensed broadcasting a state crime. In New Jersey its a fourth-degree felony, punishable with a fine of up to $10,000 and eighteen months in prison. Florida’s law is harsher, with a maximum penalty of 5 years in the pokey. But these are the only states with such laws in the US. In California, where FCC Free is located, there are no anti-piracy laws, state and local cops have nothing to do with pirates and nobody is going to jail.

John Anderson at DIYRadio.net studied FCC enforcement actions for his Master’s thesis, and recently took up this misconeption and laid it to rest quite succinctly:

Mythbusting time: The FCC cannot arrest people and send them to jail. FCC field agents are government inspectors, not licensed law enforcement officials. In fact, when they do have to call in “the law,” it’s typically either Federal Marshals (see Freak Radio Santa Cruz) or the local po-po (see San Francisco Liberation Radio).

In both cases, the “arrest warrant” was for the equipment conducting the unlicensed broadcasting, not for actual people. And when the FCC does go after individual people, it does so typically by seeking a monetary forfeiture; sending folks to prison for pirate radio is messy, arduous, and not typically worth the effort. Even then, such fines are a bitch to collect.

Even among the two states where unlicensed broadcasting is against state law arrests only are really happening in Florida. I can find no reports of anyone in New Jersey having even been arrested, never mind going to jail. Out of the entire country Florida is a special case to begin with, serving as home to a proliferation of unlicensed stations unseen anywhere else in the US. But, again, while there have been reports of arrests in Florida–such as this recent bust in Fort Myers–I’m unable to turn up any good reports on convictions and jail time.

Therefore, for all intents and purposes, there are only two states in the US where a pirate broadcaster seriously risks jail time, and only one where there is a record of arrests. In the forty-eight other states, jail time is so remote so as to be not a risk at all.
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I was disappointed but unsurprised to learn about the end of Pirate Cat Radio’s unlicensed FM broadcast resulting from the FCC issuing a notice of apparent liability (NAL) to Pirate Cat’s operator Monkey Man a/k/a Daniel K. Roberts. However, I am surprised at how long Pirate Cat was able to make a go of it operating out in the open. Perhaps appearing on the Travel Channel’s No Reservations made it hard for the Commission to turn a blind eye much longer.

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.