FCC Issues $10,000 Forfeiture Order to Pirate Cat Radio Founder

[ChrisSmolinski]

On Friday, the FCC posted a notice that a forfeiture order for $10,000 was issued to Pirate Cat Radio founder Daniel “Monkey Man” Roberts for “willfully and repeatedly violating section 301 of the Communications Act of 1934…by operating an unlicensed radio broadcast station” in San Francisco...

http://www.radiosurvivor.com/2011/10/26/fcc-issues-10000-forfeiture-order-to-pirate-cat-radio-founder/

http://transition.fcc.gov/Daily_Releases/Daily_Business/2011/db1021/DA-11-1756A1.pdf

[John Poet]

This is total BS-- as they have no proof that he's operating any transmitter.  They're basing the fine on the fact that Cat is operating a webstream, and "is aware" that someone is transmitting it illegally.  They say that "operating a station" is not necessarily "defined" by who controls the transmitter!

Based on that logic, they would fine TCS for producing a show, which is then broadcast on transmitters which I do not control.  (Good luck collecting anything, though.)

So, I guess, taking that principle to its natural conclusion, the FCC will now be fining record companies, if the companies are "aware" that their product is being broadcast on pirate radio stations!

[UNID QRP]

This is total BS-- as they have no proof that he's operating any transmitter.

Well, they claim to have seen him at the control point of the station, and that could have rather unfortunately screwed him.  Quoted from the article, emphasis mine:

"In late April, 2009, FCC agents located the source of the radio transmissions, identifying an antenna on a roof of a residence in San Francisco. At the same time, the agents also “observed Roberts operating and controlling the unlicensed radio station” and subsequently “recognized Roberts’ voice and identified Roberts as the voice on the unlicensed transmissions on 87.9 MHz.3.”"

Whether or not that's a valid claim is anyone's guess in the absence of additional information, but, further to that:

Based on that logic, they would fine TCS for producing a show, which is then broadcast on transmitters which I do not control.

Agreed - that would be unenforceable, though it wouldn't surprise me if they tried.  One thing I do wonder about, however, is if this is indicative of an attempt by the FCC to start cracking down on people producing and supplying programming to be relayed by another station - which is pretty much what it sounds like Pirate Cat Radio may have been doing.  Frankly, that's something I see as unenforceable: the transmitted material is incidental (rather than material) to the act of transmission.  Also, if that is the direction they're taking, it brings up the question of whether any material is thus covered - would someone saying 'bleepblorp' over and over into a microphone for a couple of hours have the same degree of culpability for the content as someone who provided an hour-long programme to a relay?  Would an open key with no content be considered programming?  What about an unmodulated carrier?

So, I guess, taking that principle to its natural conclusion, the FCC will now be fining record companies, if the companies are "aware" that their product is being broadcast on pirate radio stations!

"Hello, Mr. Osbourne?  Yes, KDERP Radio - an unlicensed 10W FM pirate station you've never heard of 40 miles east of St. George, Utah played "Paranoid" a few weeks ago.  No, we're not here to deliver your royalty cheque.  In fact, that'll be ten thousand dollars, please - your band wrote and performed the song in question for the recording that was broadcast illegally, so clearly you're the party responsible for the unlicensed station's actions.  What's that, sir?  Uh, I should advise you that telling a federal employee to autoinsert official documents rectally is a federal offense, punishable by..."

[John Poet]

I was speaking more to the issue of this quote from their NAL, than the specific case of Roberts. They seem to be fining him based on earlier visits, BECAUSE someone has been transmitting the webstream RECENTLY.... whereas before it was left standing as a NOUO-- that's how I understand this, anyway.


Here's the problem section:

Roberts mistakenly argues that a violation of section 301 of the Act requires that the
violator be actually operating a transmitter at the location of the studio and nothing less. This is incorrect.
For the purposes of section 301,16 the word “operate” has been interpreted to mean “the general conduct
or management of a station as a whole, as distinct from the specific technical work involved in the actual
transmission of signals.”17 In other words, the use of the word “operate” in section 301 of the Act
captures not just the “actual, mechanical manipulation of radio apparatus,”18 but also operation of a radio
station generally.19 To determine whether an individual is involved in the general conduct or
management of the station, we can consider whether such individual exercises control over the station,
which the Commission has defined to include “. . . any means of actual working control over the
operation of the [station] in whatever manner exercised.”20

Similar to their claim that they have "the right" to "enter and inspect" any domocile in the US in which they say a transmitter is located, without any warrant, and even though the residents hold no licenses... they are full of $hit.  They gave me about six pages of rather snarkily written BS explaining how they have "the right" to enter anyone's home, basically on their say-so.  Uh, no thank you.  

[John Poet]

deleted duplicate

[ChrisSmolinski]

I was speaking more to the issue of this quote from their NAL, than the specific case of Roberts. They seem to be fining him based on earlier visits, BECAUSE someone has been transmitting the webstream RECENTLY.... whereas before it was left standing as a NOUO-- that's how I understand this, anyway.

Right, the FCC is interested in compliance. If you violate their regs, they [usually] send you a NOUO. If you're a good boy, and stop transmitting, they usually leave it at that. If you go back to transmitting, they're not no nice the next time. It's like when you get a speeding ticket, and the judge gives you PBJ (Probation Before Judgement). If you don't get caught speeding again, you avoid the penalties. If you do get another ticket, the old one comes back to bite you.

The article was not well written enough (for me, anyway) to figure out whether or not the station was still transmitting on FM after the NOUO.  This article: http://www.hmbreview.com/news/no-home-but-kpdo-keeps-on-truckin/article_3df0a4c2-b89d-11e0-bb70-001cc4c002e0.html seems to imply that they were on the air until May 2011. 

Here's the problem section:

Roberts mistakenly argues that a violation of section 301 of the Act requires that the
violator be actually operating a transmitter at the location of the studio and nothing less. This is incorrect.
For the purposes of section 301,16 the word “operate” has been interpreted to mean “the general conduct
or management of a station as a whole, as distinct from the specific technical work involved in the actual
transmission of signals.”17 In other words, the use of the word “operate” in section 301 of the Act
captures not just the “actual, mechanical manipulation of radio apparatus,”18 but also operation of a radio
station generally.19 To determine whether an individual is involved in the general conduct or
management of the station, we can consider whether such individual exercises control over the station,
which the Commission has defined to include “. . . any means of actual working control over the
operation of the [station] in whatever manner exercised.”20

Right, they're saying "control" is not limited to the guy who  turns on the transmitter. The broader definition includes, for example, the owner of a station, as well as management. If you own a daytimer AM, and tell your chief engineer to keep the power at full even at night, you suffer the penalties as well. 

It certainly does create some gray areas. Taken to the extreme, if you create programming, and send it to a pirate operator with the request to relay, you could be in violation.

It most certainly does not include fining record companies because their song was played. They did not solicit or direct the illegal broadcasting of the material. That's the difference.

[Zoidberg]

If the FCC is trying to imply, with that warped funhouse mirror logic, that they have jurisdiction over those who provide content that may or may not happen to be intended for broadcast... good luck, buddy.  That's not opening a can of worms, that's jumping into a viper's nest.

[Nella F.]

Ahhh, found it! He's xmiting on FM. FM=Corporate Big Bucks. FCC has Been Co-opted by Biiiigg Bucks. They're the Big Brother for the FM/music entertainment industry b o t t o m LINE! But I'm sure most of you already know this & I'm just rehashing blatantly obvious & old news... forgive me now 'cause most of the time I'm simply
  "Bored Now."

[John Poet]

Bah, I read something else about this somewhere, was commenting on what I thought I read.  Now these don't seem to say quite the same thing.

Now I see that this forfeiture order only reiterates the previous Notice of Apparant Liability (fine) already issued in 2009, and is not really anything new.

Nevermind, nothing to see here-- except I really hate FCC agents.  I think they should find honest work.  I wish them ill, very very ill.

[diymedia]

In a nutshell, Mr. Roberts is the victim of his own publicity. He's run Pirate Cat Radio since 1997 - it first started in his dorm room while in college, and has since moved to many locations around SF (the cafe being the last). Pirate Cat's also been a regular occupant of 87.9 MHz, and it's been visited by the FCC multiple times over the years.

Roberts has not shied away from publicity about the station - he's been on radio, TV and in the papers talking up his activity. So I am far from surprised that the FCC finally caught up with him.

I do not believe the FCC actually means it can/will bust people who feed content to unlicensed stations. Considering Roberts' long public history with Pirate Cat, it was kind of disingenuous of him to claim the studio was separate from the transmitter - the record was already quite clear that Roberts owned the gear.

I am also suspicious of anyone who invokes 47 CFR 73.3542 without having followed that statute to the letter (in order to invoke it, you have to let the FCC know you're on the air, which I'm sure would open up an interesting legal can of worms for someone who chooses to pursue this strategy).

Long story short: it took the FCC 14 years to fine a guy who wore pirate radio on his sleeve. Why it decided to ding him now, after the station effectively jettisoned him and changed its name to Mutiny Radio, is unclear...since it won't really have any effect on station operations in the here and now, under new management.

[Nella F.]

"...Why it decided to ding him now, after the station effectively jettisoned him and changed its name to Mutiny Radio, is unclear...since it won't really have any effect on station operations in the here and now, under new management.

To make an example out of him...?

[diymedia]

Nah, this was an easy case for the FCC. Nobody in the Bay area's gonna run for the hills just because Mr. Roberts got dinged.