Preventing Illegal Radio Abuse Through Enforcement Act (PIRATE Act)

AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

In this document, the Commission adopts final rules pursuant to the Preventing Illegal Radio Abuse Through Enforcement Act (PIRATE Act). Section 2 of the PIRATE Act adds a new section to the Communications Act of 1934, as amended (the Communications Act), enumerated as section 511 and entitled “Enhanced Penalties for Pirate Radio Broadcasting; Enforcement Sweeps; Reporting.” This Order amends the Commission's rules to implement that provision.

DATES:

This rule is effective April 26, 2021.

FOR FURTHER INFORMATION CONTACT:

For additional information on this proceeding, contact Shannon Lipp of the Office of the Bureau Chief, Enforcement Bureau, at Shannon.Lipp@fcc.gov or (202) 418-8192.

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Order, DA 20-1490, adopted and released on December 17, 2020. The document is available for download at https://docs.fcc.gov/public/attachments/DA-20-1490A1.pdf. To request this document in accessible formats for people with disabilities (e.g., Braille, large print, electronic files, audio format, etc.) or to request reasonable accommodations (e.g., accessible format documents, sign language interpreters, CART, etc.), send an email to fcc504@fcc.gov or call the FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

Paperwork Reduction Act

This document does not contain new or modified information collection(s) subject to the Paperwork Reduction Act of 1995, Public Law 104-13. It does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

Congressional Review Act

The Commission has determined, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, concurs, that this rule is non-major under the Congressional Review Act, 5 U.S.C. 804(2). The Commission will send a copy of this Order to Congress and the Government Accountability Office, pursuant to 5 U.S.C. 801(a)(1)(A).

Synopsis

1. The PIRATE Act grants the Commission additional enforcement authority, including higher forfeiture penalties, against pirate radio broadcasters and any person who permits the operation of pirate radio broadcasting. Section 2 of the PIRATE Act adds a new section to the Communications Act of 1934, as amended (the Communications Act), enumerated as section 511 and entitled “Enhanced Penalties for Pirate Radio Broadcasting; Enforcement Sweeps; Reporting.” This Order amends section 1.80 of the Commission's rules to implement that provision. We move directly to an order here because implementation of new section 511 entails no exercise of our administrative discretion and, therefore, notice and comment procedures are unnecessary under the “good cause” exception to the Administrative Procedure Act (APA).

2. New section 511 provides specific authority for the Commission to combat pirate radio broadcasting with enhanced penalties. Pirate radio broadcasting is defined as “the transmission of communications on spectrum frequencies between 535 and 1705 kilohertz, inclusive, or 87.7 and 108 megahertz, inclusive, without a license issued by the Commission, but does not include unlicensed operations in compliance with part 15 of title 47, Code of Federal Regulations.” 47 U.S.C. 511(h). Sections 511(a) and (b) permit forfeitures of up to $100,000 per day, up to a maximum fine of $2 million, for any person who “willfully and knowingly does or causes or suffers to be done” any pirate radio broadcasting. These enhanced forfeiture amounts are “in addition to any other penalties provided by law.” 47 U.S.C. 511(b) (emphasis added). Section 511(f) directs the Commission to “revise its rules to require that, absent good cause, in any case alleging a violation of subsection (a) or (b), the Commission shall proceed directly to issue a notice of apparent liability without first issuing a notice of unlicensed operation.”

3. We amend § 1.80 of our rules to implement section 511. First, we codify penalties for violations of section 511(a) or (b). Under the amended rule, the Commission has the authority to impose a penalty of up to $100,000 per day, up to a maximum fine of $2 million, against any person who willfully and knowingly does or causes or suffers to be done any pirate radio broadcasting, in addition to any forfeiture penalty amount that may be proposed under any other provision of the Communications Act. These amounts are subject to annual adjustments due to inflation. Amendment of Section 1.80(b) of the Commission's Rules, Adjustment of Civil Monetary Penalties to Reflect Inflation, Order, 35 FCC Rcd 14879, 86 FR 3830 (Jan. 15, 2021) (EB 2020).

4. Second, consistent with section 511(f), we amend section 1.80 to provide that, absent good cause, the Commission shall, in the first instance, propose a penalty against any person who “willfully and knowingly does or causes or suffers to be done any pirate radio broadcasting.” In other words, absent good cause to do otherwise, the Commission will not first issue a notice of unlicensed operation to a person who engages in such conduct. In applying the good cause standard in section 511(f), we may consider Commission precedent concerning waiver of our regulations for good cause shown. In general, this standard requires special circumstances warranting a deviation from the general rule and serving the public interest.

5. Consistent with previous decisions, we amend our rules without providing for prior public notice and comment. Our action here is ministerial because it simply effectuates regulations established by legislation and requires no exercise of administrative discretion. For this reason, we conclude that prior notice and comment would serve no useful purpose and is unnecessary. We therefore find that this action comes within the “good cause” exception to the notice and comment requirements of the APA.

6. The Enforcement Bureau is responsible for, among other things, rulemaking proceedings regarding general enforcement policies and procedures. In section 511(f) of the Communications Act, Congress mandated the Commission to prescribe implementing regulations. Additionally, the enhanced penalties set forth in sections 511 (a) and (b) require codification in the Commission's rules. Therefore, action on delegated authority is properly taken in this Order amending § 1.80 of our rules, which is part of the Commission's general enforcement policies and procedures. In addition, because a notice of proposed rulemaking is not required for these rule changes, no regulatory flexibility analysis is required.

7. Effective Date. The rules adopted in this Order shall be effective 30 days after publication in the Federal Register.

8. Accordingly, it is ordered, pursuant to sections 4(i), 4(j), and 511 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 511, and §§ 0.111(a)(22), 0.231(b), and 0.311(a)(1) of the Commission's rules, 47 CFR 0.111(a)(22), 0.311(a)(1), that this Order is adopted.

9. It is further ordered that § 1.80 of the Commission's rules, 47 CFR 1.80, is amended as set forth in the Appendix.

10. It is further ordered that this Order and the foregoing amendments to the Commission's rules shall be effective thirty (30) days after the date of publication in the Federal Register.

11. It is further ordered that the Commission's Consumer & Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Order to Congress and the Government Accountability Office pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).

List of Subjects in 47 CFR Part 1

• Administrative practice and procedure
• Penalties

Final Rules

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 1 as follows:

PART 1—PRACTICE AND PROCEDURE

1. The authority citation for part 1 is revised to read as follows:

Authority: 47 U.S.C. chs. 2, 5, 9, 13; 28 U.S.C. 2461 note, unless otherwise noted.

2. Amend § 1.80 as follows:

a. Revising paragraph (a)(4);

b. Redesignating paragraphs (a)(5) and (6) as paragraphs (a)(6) and (7) and adding a new paragraph (a)(5);

c. Revising newly redesignated paragraph (a)(6);

d. Redesignating the Note to paragraph (a) as Note 1 to paragraph (a);

e. Redesignating paragraphs (b)(6) through (10) as paragraphs (b)(7) through (11) and adding a new paragraph (b)(6);

f. Revising newly redesignated paragraphs (b)(9) and (10);

g. Removing the Note to paragraph (b)(8) following newly redesignated paragraph (b)(10);

h. Revising the heading of the table in newly redesignated paragraph (b)(11)(ii);

i. Revising the Note following newly redesignated paragraph (b)(11);

j. Revising the introductory text to paragraph (d); and

k. Redesignating paragraphs (e) through (j) as paragraphs (f) through (k) and adding a new paragraph (e).

The revisions and additions read as follows: