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Boston pirate bust is a lesson in the slow grind of bureaucracy

Datz Hits 99.7 FM

It’s been quite some time since I can recall the FCC imploring a U.S. Attorney to issue a warrant to shut down an unlicensed FM station. In fact, it’s quite a rare action, usually reserved for long-running stations that either have been utterly unresponsive to administrative notices or have operated for a long time out in the open in civil disobedience. However, on May 13 the FCC got Boston area U.S. Attorney Carmen M. Ortiz to issue a warrant for the seizing of the transmitting equipment used by “Dat Hitz” at 99.7 FM. While the press release issued by the U.S. Attorney in Boston (PDF) might give the attention that the bust was the result of swift action, the opposite is actually true.

Though I hadn’t heard of the station before, it appears that the broadcasters have been on the air for at least four years, and made no attempt to be underground, maintaining a frequently updated website and twitter feed. The website still features the FM frequency prominently. As evidence for the station’s longevity I find published complaints about “Datz Hitz” interfering with a commercial station on 99.5 FM going back to 2007. Interestingly enough, the twitter feed has continued unabated since the May 13 raid, the only difference being that on May 12 they were advertising the FM frequency, while on May 14 they were only promoting a web stream.

The FCC’s press release names none of the persons behind the broadcast. Two separate Forfeiture Notices issued on May 17 (1, 2) seem to be for the same station, listing the same 99.7 FM in the same neighborhood as “Datz Hitz.” An earlier Notice of Apparent Liability (NAL) from October, 2010 issued to the same individuals fill some of the backstory left out of the FCC’s release.

FCC agents first investigated the station in October, 2009, and when they found it they were allowed to enter the building where they saw an unlicensed transmitter and left a Notice of Unlicensed Operation (NOUO). Strangely, two men then contacted the FCC and invited agents back to the station’s location and admitted to operating the station. The agents then issued the men two NOUOs personally and the men agreed to shut down the station.

Then, several months later in February 2010, FCC agents acted on complaints and again investigated the station, finding it operating from the same address. This time the broadcasters did not answer the door. It then took the FCC until October to take further action, issuing the NAL. After that, apparently the operators got a little wiser and moved operations. It’s that second location that was the site of the May 13 bust.

The story of this particular station serves as almost a textbook case of how not to run an unlicensed station. First, don’t advertise your station as if it were a licensed commercial station. Second, when the FCC shows up, don’t let them into your building or studio. Three, if they do leave a notice at your studio, don’t call them up later to invite them over and admit to running it. Finally, if the FCC does show up to your studio and leave a notice, don’t wait over a year to move the station.

Of course the Commission is going to play up this action to give the impression that it’s tough on pirate broadcasters and to scare off other unlicensed broadcasters. But the truth of the matter is that the FCC is really not equipped to be an enforcement agency. It’s bureaucracy and procedures are designed to deal with people and organizations that are licensed and want to keep their licenses, more like the FDA than the DEA. Note that in this particular case how months passed between FCC actions, and that the first action seems to have taken place around a full two years after complaints were published in the local newspaper.

This is not to say that the FCC cannot or will not take action against an unlicensed broadcaster. Rather, the simple truth is that the Commission is best at hitting sitting ducks, whether those ducks are sitting due to complacency, an ethos of civil disobedience, naïveté or simple ignorance.

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