The remarkable aspect of Knighten’s story is that he missed his arraignment hearing earlier this month in order to attend a panel discussion about civil rights and broadcasting at the New America Foundation in Washington, DC. It’s unfortunate that Knighten was broadcasting in Florida, which is one of only three states with state laws targeting unlicensed broadcasting, and the only state which has made any arrests under statute. In most other states Knighten would only face the wrath of the FCC, which continues to have a pretty poor record in collecting fines for unlicensed broadcasting.

FCC Enforcement Actions 1997-2011

Our friend John Anderson at DIYmedia.net recently published his annual survey of anti-pirate FCC action. His findings for 2011 shouldn’t surprise anyone who has been following the subject here at Radio Survivor on or John’s site.

In fact, Commission enforcement against unlicensed broadcasters hit a 6-year low in 2011. As John reports,

From a record high of 447 enforcement actions clocked in 2009 and 2010, field agents executed just 184 in 2011, against fewer than 100 stations total. Massive drops were seen in the number of station-visits and warning letters issued.

John notes that the total amount in fines handed down by the FCC was actually the highest since 2005, $168,400. However, as this November, 2011 Radio World article would corroborate, it’s highly unlikely the agency will ever collect anything close to that dollar amount when all is said and done.

Apparently looking to follow the example set by New Jersey and Florida, New York state senate bill S2737-2011 is intended to create “the crime of unauthorized radio transmission, a class D felony, punishable by imprisonment and a fine in the amount of not less than $10,000.00.” Thanks go to John Anderson at DIYmedia.net and Paul Thurst at Engineering Radio for first making me aware of this legislation.

As John points out, New York City is a hotbed for unlicensed broadcasters, with the state edging out Florida for the first time for the greatest number of FCC enforcement actions in 2010. This does not necessarily mean, however, that New York has more pirate stations than any other state, just that there were more FCC actions there. Certainly we can infer that there are many pirate stations prompting the action, but Commission enforcement also is often cyclical and some offices seem to be more interested in going after pirates than other. It does appear that complaints from licensed broadcasters may contribute to an uptick in enforcement.

Radio-info reports that lawmakers are motivated not just by interference complaints but allegations that stations are connected to criminal activity. WVOX/WVIP, New Rochelle owner Bill O’Shaughnessy is quoted claiming that “thugs” in a black Cadillac Escalade pulled up alongside an FCC agent’s car and warned, “‘I don’t think you want to go in there.” The article doesn’t explain how O’Shaughnessy comes to know or verify this colorful story.

This is a similar line of reasoning used to justify the anti-pirate law in Florida, as well as other enforcement campaigns in places like London, England and Israel. Of course, the argument begs the question as to why can’t the authorities target the supposed crimes that are already illegal?

As I reported last July, there are no reports of anyone going to jail for unlicensed broadcasting in either New Jersey or Florida, although there have been sporadic accounts of arrests in Florida. You’d think that with all the hoopla in Florida, in particular, if there was a conviction with any kind of jail time the local authorities would trumpet it to the local press. However, the last conviction appears to be in 1999, and that is under federal statute, not state. Therefore, I don’t think we can reasonably conclude that Florida’s anti-pirate law is doing much curb crime in that state, so much as giving police one more crime to enforce.

Should the New York bill pass I doubt we’ll see much change in either the unlicensed radio landscape or crime stats in that state. I think we can expect to see a few well-publicized arrests right off the bat, probably low-hanging fruit. And then things will quiet down and those frequencies will become occupied by another broadcaster serving up programming that fills a void not served by a licensed station.

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.

Now, unlicensed broadcasting is still against the law, and the FCC can issue fines. But, as John had documented for the last decade, the Commission’s track record for actually collecting those fines is not that great.

I don’t mean to claim that unlicensed broadcasting carries no risk, but rather to put that risk in perspective. Many people break laws every day, whether it’s by jaywalking or speeding, smoking pot or internet file sharing. And some of those people get caught and pay fines, get sued or go to jail. Yet those activities continue, with many violators making a rational analysis to weigh the risk of getting caught against the benefits of that activity.

No doubt it can be a shock to receive a letter from the FCC threatening thousands of dollars in fines, and I don’t blame anyone on the receiving end for deciding to put away her transmitter and antenna. Yet, being hassled by the FCC on an administrative charge–not criminal–is still a very different thing than dealing with real criminal charges from the police.

Unlicensed broadcasting carries risks and anyone thinking about becoming a radio pirate should give those risks due consideration. But, unless you live in Florida or New Jersey, don’t be spooked into thinking you’re likely to go to jail, even if the FCC catches you red handed.

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.