The Communications Act prohibits the transmission of radio signals above specified power levels without a FCC license. The NAL follows a five-year investigation of Fabrice Polynice, who operated a pirate radio station in North Miami, Florida from a shed located in the backyard of Harold and Veronise Sido (the “Sidos”). FCC field agents first identified the pirate station in 2012 and warned Mr. Polynice and the Sidos that such operations were illegal. But the unlicensed operations continued, resulting in seizure of the station’s radio equipment by U.S. Marshalls later that year. However, the station soon returned to the air and the FCC’s Enforcement Bureau subsequently fined Mr. Polynice $25,000, which remains unpaid. At the time, the Enforcement Bureau declined to impose fines against the Sidos, but again warned them of the illegality of pirate operations.

In the NAL, the FCC found that Mr. Polynice continued to operate the pirate station despite the prior fine and multiple additional warnings from FCC field agents in recent years. The FCC determined that the maximum fine was necessary in light of the intentional and repeated nature of the violations as well as the egregious disregard demonstrated for the Commission’s authority. However, the FCC went a step further and also found the Sidos apparently liable for the continued operation of the pirate station. In doing so, the FCC used a “totality of the circumstances” test that focused on three criteria:

• First, the FCC emphasized that the Sidos controlled access to the backyard containing the shed housing the pirate station’s transmitter and antenna, and granted access to Mr. Polynice with the knowledge that his pirate radio operations were illegal.
• Second, the FCC highlighted the material support the Sidos gave the station, including providing and paying for the Internet service necessary to carry the station’s programming to the transmitter and the electricity required to run the station’s equipment.
• Third, the FCC noted that Mr. Sido apparently joined Mr. Polynice during broadcasts and the Sidos often took the station off the air in response to FCC field agent visits, further demonstrating control over station operations.

The Commissioners all supported the NAL, although Commissioner O’Rielly criticized the size of the proposed fine as inadequate compared to the larger penalties imposed for violations of other FCC rules, and asked Congress to increase the statutory maximum penalty for pirate operations. Commissioner Clyburn also cautioned that pirate operations may be driven by the lack of opportunities to obtain FCC licenses, especially for stations targeting minority listeners in urban areas.

While the facts underlying the NAL are straightforward, its impacts may be far-reaching. Chairman Pai indicated that the FCC wanted to send “a clear message” to pirate operators and their supporters that it will use its “strongest enforcement tools” to curb unlicensed operations. However, the FCC’s current enforcement focus appears limited to property owners that not only knew about pirate stations operating on their property but also actively supported such operations knowing they are illegal. As a result, it remains to be seen whether the FCC will expand its focus to target apartment landlords and other owners of multi-tenant properties that may be unknowingly housing pirate stations.

Federal law prohibits the operation of a radio broadcast station above certain power levels without an FCC license. Since arriving at the FCC, Commissioner O’Rielly has been a frequent critic of pirate broadcasters, arguing these unauthorized operations steal listeners from licensed stations, cause harmful interference to licensed stations, and do not provide critical emergency alerts, weather updates, and news offered by licensed stations. Despite these harms, the Commissioner claimed the FCC has done little to combat unauthorized stations, particularly in pirate “hotbeds” of New York City, Boston, and Miami. As a result, Commissioner O’Rielly has supported multiple anti-pirate proposals during his FCC tenure, from empowering licensed broadcasters to bring private lawsuits against unauthorized stations to ensuring the Enforcement Bureau remains committed to pirate enforcement following the closure of FCC field offices. The Commissioner’s recent statement recommended beefing up pirate enforcement in five areas:

1. Increased Penalties – While the FCC occasionally issues large penalties against particularly egregious, long-running unauthorized broadcasters, such actions are rare with pirate operators generally receiving non-monetary warnings or fines below the $25,000 delegated authority limit for Enforcement Bureau actions in this area. Commissioner O’Rielly recommended that the fines against pirates should instead mirror the significant penalties proposed for other violations impacting public safety and consumer protection, which can range from millions to hundreds of millions in fines.
2. Third-Party Aiding & Abetting Liability – The FCC issued an Enforcement Advisory last year with Commissioner O’Rielly’s support warning that third parties aiding pirate operations may be subject to enforcement action. But FCC pirate radio investigations continue to target the actual station operators instead of those “aiding and abetting” such violators. In his statement before the House Subcommittee, the Commissioner reiterated his recommendation to take enforcement action against landlords, building owners, building supervisors, and advertisers that “knowingly and intentionally assist” pirates to cut off outside support for unauthorized stations.
3. Equipment Confiscation – Federal law allows FCC agents to confiscate pirate broadcaster equipment, but only after receiving the approval of the Department of Justice and overcoming certain procedural hurdles. As a result, FCC agents often leave pirate equipment in place after conducting investigations, allowing unauthorized stations to quickly return to the air. The Commissioner recommended the FCC adopt an expedited process to confiscate pirate equipment, particularly when such equipment is located in common areas like elevator shafts and rooftops not owned or controlled by pirate operators.
4. Follow-Up Enforcement – As a corollary to equipment confiscation, the Commissioner recommended that FCC agents conduct follow-up sweeps of known pirate hotspots to ensure that unauthorized stations do not return to the air after investigations. Although he did not offer a specific timetable, the Commissioner indicated in his statement that such sweeps should occur at least annually.
5. Eliminating Warnings – Federal law allows the FCC to impose fines on pirate broadcasters without first issuing a warning or other notice. However, Commissioner O’Rielly stated that FCC agents often leave warning after warning informing the same individuals to stop unauthorized broadcasts to no avail. The Commissioner indicated that this process undermines FCC authority and recommended that it suspend any further warnings to pirates and move to propose fines against unauthorized broadcasters as soon as they are discovered.