Did you receive a FCC cease and desist letter for operating an unlicensed radio station? We can help with enforcement actions and other legal issues facing broadcasters!
Introduction
Pirate radio operators running a radio show out of their apartments, in a studio, on a boat offshore (like the movie), on a rooftop or in another location need to be concerned with a new law that looks like it is going to pass in 2020 and is just waiting for President Trump's signature. The new law is known as "The Pirate Radio Act."
2018 Update
FCC seizes equipment from Pirate Radio FM operating from a high rise apartment building in Manhattan, New York. This requires a search warrant so you can see the extent of the enforcement efforts. Congress is working on a “PIRATE Act” (Preventing Illegal Radio Abuse Through Enforcement) with more stringent penalties against illegal operators (up to 2 million). Currently, federal law allows a maximum fine of $19,246 per day for each violation or each day up to a statutory maximum of $144,344. The law being debated would bump that top $100,000 per day, (per violation) with $2 million max.
2020 Update - The Pirate Act (Preventing illegal Radio Abuse Through Enforcement) about to be signed into law?
The FCC (Federal Communications Commission) is charged with enforcing pirate radio (sometimes called "FCC spectrum enforcement"). They have always had legal authority to stop illegal FM broadcasting, but now, new tools may be on the way if President Trump signs the new law.
The new law would raise fines up to $100k per instance and up to a maximum of two million dollars for anyone who "knowingly facilitates illegal pirate radio operations." This is significant as it is sometimes said that there are more pirate radio stations than there are legitimately licensed stations, especially in urban areas such as Brooklyn, New York, Boston Massachusetts, Florida, Texas, New Jersey, and California.
The new law promises bigger fines and more regularized enforcement efforts along with requiring a report to Congress. FCC works in conjunction with the US Attorneys Office and the US Marshall's Office and can go after individuals, landlords, advertisers and others who routinely ignore warnings such as a:
1. Notice of Apparent Liability ("NAL")
2. Notice of Unlicensed Operation (which can act as a cease and desist letter). Here is some language and code sections pulled from a sample letter:
"Radio stations operating on a range of frequencies, including 87.9 MHz, must be licensed by the FCC pursuant to Section 301 of the Communications Act of 1934, as amended (Act). The only exception to this licensing requirement is for certain transmitters using or operating at a power level or mode of operation that complies with the standards established in Part 15 of the Commission's rules. On March 19, 2018, the field strength of the signal on frequency 87.9 MHz exceeded the maximum permitted level of 100 microvolts per meter (µV/m) at 3 meters for non-licensed devices operating in the band 30-88 MHz.4 Thus, this station is operating in violation of Section 301 of the Act.
47 CFR § 73.603.
47 U.S.C. § 301.
47 CFR §§ 15.1
47 CFR §§ 15.209.
47 U.S.C. § 301
3. Radio Piracy fine reaches landlord
We will see if the law is passed. If you received a letter from any of these entities' information you of a violation of internet radio or Pirate radio regulations call us to discuss with our technology lawyer.
Introduction
According to wikipedia:
Pirate radio or a pirate radio station is a radio station that broadcasts without a valid license. In some cases, radio stations are considered legal where the signal is transmitted, but illegal where the signals are received—especially when the signals cross a national boundary. In other cases, a broadcast may be considered “pirate” due to the nature of its content, its transmission format (especially a failure to transmit a station identification according to regulations), or the transmit power (wattage) of the station, even if the transmission is not technically illegal (such as a webcast or an amateur radio transmission). Pirate radio is sometimes called bootleg radio(a term especially associated with two-way radio), clandestine radio (associated with heavily politically motivated operations) or free radio.”
Recently the FCC has hit 3 individuals with a $144,344 fine for operating a pirate radio station in Miami Florida. This might be the highest fine assessed by the Federal Communications Commission and the maximum fine they could seek. This blog discusses the case in general.
Details of the case
Here is some basic background information from the case pulled from the “Notice of Apparently Liability”
- “In this case, we propose a monetary forfeiture of $144,344—the highest amount permissible in this matter under the Communications Act of 1934, as amended (the Act)—against Fabrice Polynice, Harold Sido, and Veronise Sido (Mr. and Mrs. Sido referred to collectively as the Sidos) for willfully operating an unlicensed FM broadcast radio station on 90.1 MHz from the Sido residence in North Miami, Florida. Polynice, Mr. Sido, and Mrs. Sido appear to have jointly engaged in the longstanding illicit operation of the unauthorized radio station. Mr. Polynice apparently actively promoted and broadcast the programming for the illegal radio transmissions, while the Sidos provided free access to their property for Mr. Polynice and otherwise supported, participated in, and acquiesced to the unlicensed radio station's operation.
- Unlicensed radio stations—also known as pirate radio stations—operate illegally, undermine the Commission's efforts to manage radio spectrum, and can interfere with licensed communications, including authorized broadcasts and public safety transmissions. Like the case here, some of the most egregious pirate radio operations are run by multiple individuals who simply ignore repeated enforcement actions by the Commission and the Justice Department. Such cases merit the strongest possible enforcement measures.
- Since 2012, Mr. Polynice and the Sidos have received numerous Commission warnings that operation of an unlicensed radio station was illegal and that continued operation of it could result in further enforcement action. These warnings included Notices of Unauthorized Operation (NOUOs) that each contained the directive, “unlicensed operation of this radio station must be discontinued immediately.” In July 2012, after an initial NOUO had been issued to the Sidos, U.S. Marshals executed a warrant to seize equipment for a pirate radio station that was housed in a shed in the Sidos' backyard. Later in 2012 and 2013, respectively, the Enforcement Bureau (Bureau) issued a Notice of Apparent Liability for Forfeiture and a Forfeiture Order that sanctioned Mr. Polynice for operating the unlicensed radio station. Nonetheless, since 2012, Commission field agents have detected Mr. Polynice's unauthorized broadcast operations on seven additional occasions, five of which occurred after the Bureau issued him an additional NOUO for unauthorized radio station operation. The Sidos apparently have also continued to jointly engage in the operation of the unlicensed radio station that transmits Mr. Polynice's programming after clear notice to them of its illegality, by providing a facility for the station's operation and other critical support for it.
- Even the aforementioned seizure of their pirate station broadcast equipment did not deter Mr. Polynice and the Sidos from their apparent continuing unlawful operations, as agents from the Miami Office observed unauthorized radio transmissions emanating from the Sido residence on seven additional occasions, including as recently as December 2016. Due to the repeated and egregious nature of their actions, the operation of an unlicensed FM radio station by Mr. Polynice, Mr. Sido and Mrs. Sido, in apparent violation of the Act, warrants the proposed forfeiture of $144,344, the maximum permitted under the Act for such continuing violations. Moreover, for the reasons noted herein, we conclude that Mr. Polynice, Mr. Sido, and Mrs. Sido are apparently jointly and severally liable for this proposed forfeiture.”
What is a notice of unlicensed operation (“NOUO”)
Here is a sample letter from a notice from the FCC website
“On July 18, 2017, Agents from the Miami Office (Miami Office) of the Federal Communications Commission's (FCC's or Commission's) Enforcement Bureau (Bureau) confirmed by direction-finding techniques that radio signals on frequency 88.7 MHz were emanating from a commercial property on Rodman St. in Hollywood, Florida. On August 15, 2017, in response to a Notice of Unlicensed Operation issued to American College Express LLC on August 9, 2017, you identified yourself over the phone as operating a station on 88.7. The Commission's records show that no license was issued for operation of a broadcast station at this location on 88.7 MHz in Hollywood, Florida. Radio stations operating on a range of frequencies, 1 including 88.7 MHz, must be licensed by the FCC pursuant to Section 301 of the Communications Act of 1934, as amended (Act).2
The only exception to this licensing requirement is for certain transmitters using or operating at a power level that complies with the standards established in Part 15 of the Commission's rules. 3 On July 18, 2017, the field strength of the signal on frequency 88.7 MHz exceeded the maximum permitted level of 250 microvolts per meter (µV/m) at 3 meters for non-licensed devices. Thus, this station was operating in violation of Section 301 of the Act.
You are hereby warned that operation of radio transmitting equipment without a valid radio station authorization constitutes a violation of the Federal laws cited above and could subject the operator to severe penalties, including, but not limited to, substantial monetary fines, in rem arrest action against the offending radio equipment, and criminal sanctions including imprisonment.
UNLICENSED OPERATION OF THIS RADIO STATION MUST NOT RESUME. 1 47 CFR § 73.201. 2 47 U.S.C. § 301. 3 47 CFR §§ 15.1 et seq. 4 47 U.S.C. § 301. 5 See 47 U.S.C. §§ 401, 501, 503 and 510. You have ten (10) days from the date of this notice to respond with any evidence that you have authority to operate granted by the FCC. Your response should be sent to the address in the letterhead and reference the listed case and document number. Under the Privacy Act of 1974,6 we are informing you that the Commission's staff will use all relevant material information before it to determine what, if any, enforcement action is required to ensure your compliance with FCC Rules. This will include any information that you disclose in your reply.”
Resource: You can find more FCC Field Notices here. You will find many from New York, New Jersey and Florida.
What is Notice of Apparent Liability For Forfeiture (“NAL”)
This is a document that sets forth certain violations of the federal law, and proposes a forfeiture. Here is one I found from the Central District of California:
“Proposed Forfeiture – Section 503(b) of the Act authorizes the Commission to impose a forfeiture against any entity that “willfully or repeatedly fail[s] to comply with any of the provisions of [the Act] or of any rule, regulation, or order issued by the Commission.” Here, Section 503(b)(2)(D) of the Act authorizes the Commission to assess a forfeiture against XXX of up to $19,246 for each violation or each day of a continuing violation, up to a statutory maximum of $144,344 for a single act or failure to act. In exercising our forfeiture authority, we must consider the “nature, circumstances, extent, and gravity of the violation and, with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, and such other matters as justice may require.
In addition, the Commission has established forfeiture guidelines; they establish base penalties for certain violations and identify criteria that we consider when determining the appropriate penalty in any given case. Under these guidelines, we may adjust a forfeiture upward for violations that are egregious, intentional, or repeated, or that cause substantial harm or generate substantial economic gain for the violator. Section 503(b)(6) of the Act empowers the Commission to assess forfeitures for violations that occurred within the year preceding the issuance of a Notice of Apparent Liability for Forfeiture. Section 1.80(b) of the Rules sets a base forfeiture of $4,000 for exceeding power limits for each violation or each day of a continuing violation.
These fines can be challenged:
“within thirty (30) calendar days of the release date of this Notice of Apparent Liability for Forfeiture,XXXX SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture consistent with paragraph 17 below. Payment of the forfeiture must be made by check or similar instrument, wire transfer, or credit card, and must include the NAL/Account Number and FRN referenced above.”
What is a forfeiture Order?
Here is a sample of a forfeiture order from Los Angeles:
FORFEITURE ORDER Adopted: May 26, 2016
Released: May 26, 2016 By the Regional Director, Region 1, Enforcement Bureau:
1. We impose a penalty of $15,000 against XXXXX for operating a pirate radio station in Passaic, New Jersey. The Commission warned Mr. Angeles in writing that pirate operations are illegal. The fact the Mr. Angeles would ignore the Commission's warnings demonstrates a deliberate disregard for the Commission's authority and its rules, warranting a significant penalty.
2. On September 25, 2015, the Enforcement Bureau's New York Office issued a Notice of Apparent Liability for Forfeiture (NAL) in the amount of $15,000 to Mr. XXX 1 for willful and repeated violation of Section 301 of the Communications Act of 1934, as amended (Act) 2 for operating an unlicensed radio transmitter on 91.9 MHz in Passaic, New Jersey.
Mr. XXX has not filed a response to the NAL. Based on the information before us, we affirm the forfeiture proposed in the NAL.
ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the Act, 3 and Sections 0.111, 0.204, 0.311, and 1.80(f)(4) of the Commission's rules (Rules), XXXXX in Los Angeles IS LIABLE FOR A MONETARY FORFEITURE in the amount of fifteen thousand dollars ($15,000) for violations of Section 301 of the Act. 5 4. Payment of the forfeiture shall be made in the manner provided for in Section 1.80 of the Rules within thirty (30) calendar days after the release date of this Forfeiture Order.
If the forfeiture is not paid within the period specified, the case may be referred to the U.S. Department of Justice for enforcement of the forfeiture pursuant to Section 504(a) of the Act.
What is an Order and Consent Decree?
According to wikipedia:
“A consent decree is an agreement or settlement that resolves a dispute between two parties without admission of guilt (in a criminal case) or liability (in a civil case), and most often refers to such a type of settlement in the United States. The plaintiff and the defendant ask the court to enter into their agreement, and the court maintains supervision over the implementation of the decree in monetary exchanges or restructured interactions between parties. It is similar to and sometimes referred to as an antitrust decree, stipulated judgment, settlement agreements, or consent judgment. Consent decrees are frequently used by federal courts to ensure that businesses and industries adhere to regulatory laws in areas such as antitrust law, employment discrimination, and environmental regulation.”
Part 15 of Title 47 of the Code of Federal Regulations (low power transmitter)
According to this publication by the FCC dealing with Part 15 rules:
“Manufacturers and parties selling low-power, non-licensed transmitters, or products containing low-power, non-licensed transmitters, are strongly encouraged to review the FCC's regulations closely. Recognizing that new uses of low-power transmitters often generate questions that are not directly addressed in the regulations, we welcome inquiries or requests for specific interpretations. Occasionally, the FCC proposes changes to its regulations, generally to address industry concerns and/or as new uses of low-power transmission equipment appear. See the section titled Additional Information for information on obtaining the FCC regulations, requesting interpretations, and finding out about proposed rule changes.”
Here is a link to 47 U.S.C. 15
Resources
FCC piracy enforcement actions by location
According to the FCC:
“Pirate radio has existed since the early days of radio, but advances in technology have allowed for the creation of a new breed of small, highly-mobile pirate radio stations. Unlicensed broadcasters can pose a hazard to the community by interfering with public safety frequencies. In addition, pirate stations compete unfairly with licensed broadcasters for advertising dollars. Such pirate operators pose a significant challenge to track and shut down, but the Enforcement Bureau's Field offices work around the clock, using the latest technology, to accomplish this mission. This map tracks the Enforcement Bureau's efforts to shut down such stations and take aggressive enforcement action against the operators and those who assist them. It consists of Bureau or Commission orders related to pirate radio operations, but does not include unpublished informal warnings, which may be issued in appropriate circumstances.”
According to this map, some of the “hot” locations seem to be California, Florida, New York and Massachusetts (Boston). In total, it looks like there are about 500 cases on the radar across the United States.
RadioSurvivor.com – Pirate Radio Round-Up: FCC sniffs out FM, shortwave & CB stations; Chicago's unsolved Max Headroom mystery
FCC $10,000 enforcement order in New York
Why is Pirate Radio Illegal, what's the harm?
Some of the most cited reasons for FCC enforcement of Pirate Radio under the FCC Communications Act of 1934 are:
1. Illegal broadcasting can interfere with legitimately licensed stations that provide critical functions such as traffic, news, emergency broadcasting (EAS alert system), weather, etc.
2. Pirate broadcasts can interfere with the FCC and FAA communications including airport communications (air traffic control)
3. Can expose the public to RF radiation
The old saying is if there are too many people talking then no one can hear anything.
Potential Fines, Damages and Penalties for Unauthorized Radio Broadcasting
Here are some of the potential penalties and fines associated with pirate radio broadcasting under 47 U.S.C. 401, 501, 503, and 510:
1. Money fines and penalties (we have seen fines as high as 15-25k)
2. Potential criminal penalties
3. In rem forfeiture proceedings
4. Voluntary surrender of illegal broadcasting devices, FM transmitters, antenna, cables, etc. (federal court actions are authorized)
5. Other
It should be noted that even advertisers and landlords with knowledge of the illegal activity (hosting pirate radio operators) can also be held liable and have been known to receive letters from the FCC's enforcement bureau. An enforcement bureau agent can also do a "field inspection" and if violations are found they can do immediate searching of the premises whether or not the station is licensed or unlicensed, and with or without a warrant from a federal court judge.
If fines and fees are not paid the case can be sent to the United States Department of Justice for further action. So, if you received a letter, or demand to inspect your premises for the possibility of illegal radio, it is important to be represented by a pirate radio lawyer. Under the Federal Agency Act, you have the right to any lawyer that is licensed in the United States, and the regulatory agency can not require membership, for example, in the Washington D.C. Bar.
It has been noted that there are companies like Meintel, Sgrignoli, and Wallace that conduct "engineering sweeps" to determine whether any pirate radio operations are occurring in a given location. According to their website:
"MS&W are specialists in providing real coverage measurements for Broadcasters. Our extensive experience in providing real world measurement of analog and digital signals provides broadcasters with solutions to problems. We have conducted both analog and digital television field measurements, as well as digital and analog radio measurements. MS&W is the only firm with a field test vehicle equipped for the testing of both digital and analog signals. Whether it's a coverage survey or an interference analysis, MS&W has the expertise, equipment, and experience to provide all your field testing needs."
Potential Defenses to Allegations of Running or Operating an Illegal Pirate Radio Station
Some key defenses to consider include, but are not limited to:
1. You have a license
2. You are operating within "low broadcast frequency" legal limits (within the "citizen's band")
3. There was no actual broadcast
4. No "knowing" violations of the law
5. 47 C.F.R. 15.1 ("Part 15" low power unlicensed devices) are permissible (ex. baby monitoring devices, wireless computer devices, radio-controlled toys or products). This part states incidental radiators are legal:
"Incidental radiator. A device that generates radio frequency energy during the course of its operation although the device is not intentionally designed to generate or emit radio frequency energy. Examples of incidental radiators are dc motors, mechanical light switches, etc."
Resources
1. FCC pirate radio enforcement actions by location (USA)
Keywords
XMS radio, slacker radios, internet radio, San Francisco pirate radio stations, Pacifica radio, radio stations for free, HD radio, FCC part 15, Shoutcast radio, MP3 stream, college radio station, live 365. FCC enforcement bureau, Pirate Radio Fines, #FCCfines #PirateRadioLawyer ##FMtranslators #Programmingregulation, #Losangelesradio Seizure of pirate radio equipment, unauthorized operation of a radio station.
Contact a Pirate Radio Lawyer
If you are broadcasting online or offline and find yourself in a legal situation involving potentially the FCC, call us to discuss your case. We can help with enforcement actions, allegations of illegal broadcasting, interpretations of The Pirate Act, responding to FCC letters or onsite inspection requests, or forfeiture proceedings and can be reached at (877) 276-5084. You may also email us through our contact form.
Attorney Steve Vondran has appeared in over 150 federal court cases, and many involving the 1934 Federal Telecommunications Act.
