PIRATE Act: Well Intended, But Misguided

Statement of REC Networks, Michelle Bradley regarding the draft "PIRATE Act".

You may have heard about a bill that may be considered in the U.S. House of Representatives, the "Preserving Illegal Radio Abuse Through Enforcement" or PIRATE Act.  This draft bill has been presented to the Energy and Commerce Committee, Subcommitee on Communications & Technology by Rep Leonard Lance (R-NJ) on March 22, 2018.  For those of us who are familiar with the recent history of broadcast regulation, the New Jersey Broadcasters Association (NJBA) has been very vocal and has been a staunch opponent of LPFM.  Through the influence of the NJBA, the so called "New Jersey Rule" was placed into the Local Community Radio Act of 2010.  Under the New Jersey Rule, full-service FM stations in New Jersey can object to LPFM stations in a similar manner that they can oppose FM translators under §74.1204 of the rules.  In the 2013 LPFM window, no New Jersey full-service broadcast station filed such a protest.  It is possible though they can still object to modifications.  So, yes, New Jersey has a strong broadcast lobby.

I have had a chance to read the draft text of the PIRATE Act.  Read along if you would like to but here are the basics of the draft law:

• Imposes a forfeiture of $100,000 per day with a $2,000,000 cap on forfeitures for unauthorized operation to any person who "willfully and knowingly does or causes or suffers to be done any pirate radio broadcasting".
• Waives 47 USC §503(b)(4) which requires a notice of apparent liability (NAL) and an opportunity to challenge the NAL before a forfeiture is imposed if the operator of the pirate station is "caught in the act" by the FCC.
• Applies the forfeitures to anyone who "knowingly and intentionally facilitates" pirate radio which includes providing physical goods or services, housing, facilities or financing that directly aid pirate radio broadcasting. ("knowingly and intentionally" means that the person was previously served by the FCC with a Notice of Unlicensed [Unauthorized] Operations (NOUO), Notice of Apparent Liability (NAL) or a "citation").
• Authorizes the FCC to seize and dispose of illegal pirate radio equipment.
• Calls for "biannual sweeps" in the top-five radio markets for pirate broadcasting.
• Enables state and local governments to enact their own laws and regulations that would impose criminal and/or civil penalties against those who are engaged in pirate broadcasting with the caveat that the determination of whether pirate radio broadcasting took place falls on the determination of the FCC and not on the state and local governments and that state and local enforcement will not preclude enforcement at the federal level.
• The law defines "pirate radio broadcasting" as the transmitting of communications on spectrum frequencies between 535~1705 kHz AM and 88~108 MHz on FM without a licensed issued by the FCC, but does not include unlicensed operations in compliance with Part 15 of the FCC Rules (47 CFR 15). 

The draft of this bill is well-intended but very misguided and if re-written could be an effective legislation to address those who are pirating for commercial gain while preventing undue harm and a criminal record to a Part 15 AM operator who just happens to have an antenna a couple of meters too long or some other very minor technical violation.

In my opinion, there are three types of unauthorized broadcast operations:

• Hobbyists and tinkerers who may be running part 15 equipment, especially AM with non-certified antennas or who may do some internal modifications to slightly increase their power.  These are those who just want to run innocent experiments and are still not heard any farther than a couple of houses down the street.
• The social justice pirate who feels that it is their "right" to broadcast or otherwise has a beef because of the lack of access to existing radio because of media consolidation, etc.  This would be like  your Stephen Dunifer type of pirate.  These pirates are trying to serve their community and make a statement.  Some may state that because their station is not heard out of state that the FCC has no jurisdiction on their broadcast.
• Finally, you have those who are pirating on FM an a manner that is entirely commercial.  They are operating like a local FM station with a rate card and selling advertising.  This is likely not a quest into technical curiosity or social justice but instead is a for-profit business.

In a statement made to the Committee by David L. Donovan, representing the New York State Broadcasters Association, the illegal pirates they are focusing on are not college students firing up a transmitter or experimenting with radio but instead are "illegal, coordinated and highly profitable business[es]".  So, let's assume for a moment that the true targets of the PIRATE Act are those for-profit business, some with potential criminal enterprise connections especially in places like New York City, northern New Jersey and south Florida that fall under the third group of pirates that I mentioned, this makes me think that there needs to be an "extreme" provision for the higher fine and enforcement provisions to kick in.  These extreme provisions would include (but are not limited to):

• Commercial operation,
• Broadcast of information that would facilitate a non-broadcast related illegal activity (such as drug sales),
• Foul language and other content violations (such as phone call violations, lottery and political announcements),
• Overly excessive output power (such as more than 100 times the Part 15 limits),
• Out of band spurious emissions that are causing interference to aviation communications and/or navigation.

These are the hot button issues.  This is not your hobbyist running a 50 foot long wire into a 100 milliwatt AM transmitter.  This is not even someone who is running a little more than 250 uV/m at 3 meters on FM.  This law should be about (and only be about) those who are using the spectrum without a license for commercial gain or who are actually causing immediate danger to life or property (and I am not talking about EAS here).  

The big issue here is the law's enabling of state and local laws upon a "trigger" by the FCC through NOUO, NAL or Citation (NOV).  In Florida, unauthorized radio transmissions is a third degree felony. The way the draft federal law is written is if someone who is running a small AM transmitter with an antenna that may be a little more than 3 meters which triggers a notice of violation that goes on the public record, it could result in the state moving forward and giving someone a criminal record.  This law is too subjective. Even though it puts the FCC in charge of what violates the rules and what doesn't, it still treats the hobbyist and the 2 kW commercial pirate in Brooklyn with the same level of punishment.  

The law also does not take into consideration one of the biggest pirate radio-related issues and that is the fact that major US-based companies like Amazon.com are marketing, facilitating and even in some cases fulfilling uncertified transmitters, mostly imported from China that operate in the FM broadcast band which exceed the Part 15 limitations.  Right now, for $315, you can purchase a 25 watt FM transmitter from Amazon.com.   The Commission and Congress are still enabling potential pirates to purchase their wares from mega-corporations while instead focusing their enforcement on small-time kit builders who was assembling what would have been Part 15 compliant AM broadcast kits because they did not use an overly expensive lab testing process to help out a small subset of people who owned antique radios.

Also, while I am not an expert on tenant-landlord law, I do feel that this law does put very uncessary burdens on innocent property owners, especially when the eviction process is slow.  Property owners should only be liabile if they directly participate in the constructon, funding or operation of the pirate station.

With all of this, I cannot support the PIRATE Act as currently drafted.  These are the changes I would like to see made before I could even consider supporting it:

• Create a definition of "aggravated unlicensed broadcast operation" which could include: operating massively excessive power, commercial advertising, foul language, intentional interference to another broadcast station and excessive out of band spurious emissions.  
• The higher fines and triggering of state or local action should only occur if "aggravated unlicensed broadcast operation" occurs and only after a reasonable amount of time that the operator has been served with a NOUO or NAL.  Smaller violations such as a Part 15 AM station with a slightly out of compliance antenna or Part 15 FM with a slightly higher field strength, while still actionable under the existing regulations should not trigger the more excessive forfeitures and local law enforcement action.
• Remove language that puts responsibility on property owners (landlords) where the property owner had no direct role in the construction, funding and operation of the station but only rented the property.
• Extend the frequency spans in this regulation to 525~1715 kHz for AM and 87.4~108.0 MHz for FM to prevent "semi-safe harbors".
• Enact sanctions against companies that facilitate the marketing of uncertified broadcast transmitters to the American market for unlicensed use that exceed Part 15 limitations.
• Impose federal preclusion of state laws regarding unauthorized or out of tolerance operations in all radio services except broadcast and public safety.  This would prevent states like Florida to impose restrictions and criminal charges on amateur stations.

At the same time, the FCC should acknowledge that Part 15 short range devices in the broadcast band are not just being used as "Mr. Microphones" but are being used as very short range "neighborhood" broadcasting devices and that Part 15 tolerances for these devices should be more flexible to assure that there are no "close calls" under the PIRATE Act.  This could include minor power increases on AM, minor field strength improvements on FM and some liberalization of antenna systems, especially on AM.  We must protect those that are running their Part 15 AM or FM transmitters and are acting as good radio neighbors from being turned into felons because of hairline triggers in the draft law. 

I am against pirate radio activity but at the same time, I am sympathetic to the hobbyist and experimenter who wants to see something work and provide a superhyperlocal radio service in their area.  

I feel we can make these changes and still prevent the excessively powered and/or commercial enterprises that are associated with the big time pirate stations that are interfering in NY/NJ, South Florida, Southern California and other places while not turning Part 15 hobbyists and hams into felons.