A New Headache for Landowners: FCC Liability for Radio Pirates Operating on Your Property

The Federal Communications Commission (FCC) last week warned 13 property owners in the New York City area that illegal FM radio broadcasts were emanating from their properties, and that they could face multimillion-dollar fines if the transmissions do not promptly cease.

To operate a broadcast station, the Communications Act of 1934 and the FCC’s rules require an FCC license. Those operating illegally are commonly referred to as “pirate” operators. These operations are frequently the target of FCC enforcement actions as they can, among other things, interfere with FCC-licensed broadcasts and disrupt emergency communications.

The Preventing Illegal Radio Abuse Through Enforcement (PIRATE) Act, enacted in early 2020, gave the FCC increased enforcement authority over pirate radio operators. Importantly, the Act also extended the FCC’s enforcement authority to property owners deemed to be willfully and knowingly permitting pirate radio activity on their property. The PIRATE Act permits the FCC to fine both pirate radio operators and the property owners/landlords who permit pirate radio activity on their property. The risk for property owners is substantial, with maximum fines of $119,555 per day, capped at a statutory maximum of $2,391,097. Both of these numbers are regularly adjusted by the FCC to account for inflation.

Acting on various complaints of unlicensed radio broadcasts from the New York metropolitan area, FCC field agents employed direction-finding equipment to determine the sites from which the suspect signals were originating. The FCC’s Enforcement Bureau then issued Notices of Illegal Pirate Radio Broadcasting (Notices) to the property owners of record for those sites.

While the FCC has not yet issued any fines against the 13 property owners, the Notices require each property owner to respond within ten days with evidence that the property owner is no longer permitting pirate radio broadcasting to occur on its property. The Notice also asks the property owner to identify the individual(s) who engaged in pirate radio broadcasts from the property. Recipients of such Notices should take them seriously, respond promptly, and take immediate action to halt any pirate operations on their property, as failure to respond or act may lead to a finding by the FCC that the property owner had sufficient knowledge of the pirate operations to support further enforcement action, such as fines.

As we previously discussed here and here, enactment of the PIRATE Act has caused the FCC to step up its enforcement activity, particularly against property owners. Notably, the PIRATE Act also requires the FCC to conduct pirate radio enforcement sweeps at least once a year in the top five pirate radio markets as determined by an FCC review of the areas with the most pirate radio complaints. The New York, Boston, and Miami metro areas have traditionally been hotbeds of pirate activity, so property owners in those areas should be particularly cautious about mysterious transmitting antennas appearing on their property.

While most property owners are unlikely to have access to the sophisticated direction-finding equipment used by FCC field agents to locate pirate operations, they should nonetheless watch for potential signs of illegal radio broadcasting from their property. These include higher-than-normal power usage (broadcast radio transmitters can consume a significant amount of electricity), the presence of equipment not usually found at residential locations like a broadcast radio antenna, signage at the property or on the lessee’s vehicle pointing to operation by the lessee of a radio station, and social media activity of the lessee promoting a radio station if the lessee is not employed by a licensed radio station. Believe it or not, some pirates have been caught using highway billboards to advertise their “station,” so a property owner seeing their property’s address or a tenant’s phone number used in connection with advertising for a radio station will want to take a closer look.

Property owners who suspect their property is being used for pirate radio operations or who have received a Notice of Illegal Pirate Radio Broadcasting or similar communication from the FCC should contact a member of Pillsbury’s Communications Practice without delay.