Jackbooted FCC Thugs Violating the Fourth Amendment? Hardly.

The dramatic image of jackbooted FCC agents breaking down doors and chasing down unlicensed broadcasters is an imagine that has often been exploited by the more romantic elements of the pirate community, but one that really doesn’t match up to reality. Now we have a short article on Wired’s Threat Level blog that takes a look at what writer David Singel says is the FCC’s claim that it has the right to make warrantless searches of private residences in order to inspect any sort of radio transmitter.

However, what the FCC’s spokesman David Fiske is quoted as saying is actually, “Anything using RF energy — we have the right to inspect it to make sure it is not causing interference.” While I’m not one to archly defend the FCC’s enforcement regime, Fiske’s claim stops a bit short of a warrantless search-and-seizure, or even warrantless wiretapping in severity and scope.

Indeed, as experienced unlicensed broadcasters and FCC observers have known for years, while a visiting FCC agent will always claim to have the right to inspect a suspected unlicensed transmitter, that agent has no means to express that right. That is, FCC agents aren’t cops, don’t carry guns and can’t enter your house or property without your consent. You don’t have to speak with them except to tell them to go away.

If the FCC really wants to come and inspect or seize your transmitter they need to get a real warrant, requested by a real United States attorney and issued by a real federal judge. Then they need to get real cops–usually federal marshals–to actually serve the warrant. This is a big pain for the Commission and not something relished by US attorneys and marshals more interested in nabbing big criminals, so it’s pretty rare.

Still, it is true that if the Commission thinks it has a pretty good case that you’re operating an unlicensed transmitter in an illegal fashion they’ll hold it against you for not cooperating with them, adding to the fine they’ll try to collect. In a case of this vein, Wired’s Singel reports that,

In a 2007 case, a Corpus Christi, Texas, man got a visit from the FCC’s direction-finders after rebroadcasting an AM radio station through a CB radio in his home. An FCC agent tracked the signal to his house and asked to see the equipment; Donald Winton refused to let him in, but did turn off the radio. Winton was later fined $7,000 for refusing entry to the officer. The fine was reduced to $225 after he proved he had little income.

This reduction in fines is a pretty common occurrence with the FCC. An even more common occurrence is the FCC failing to collect on fines at all, as John Anderson of DIYmedia.net has pointed out continuously on his site and on the mediageek radioshow. Again, the amount of bureaucracy and inter-agency cooperation required to actually enforce the collection of fines against unlicensed broadcasters often results in the statute of limitations running out before any money is collected. For instance, reporting on the FCC’s 2006 enforcement actions, John noted,

These cases highlight instances of negative productivity in the enforcement process: the FCC spent much more in resources (personnel-time and travel, to name two) than it will recoup from the punishment meted, provided the five-year statute of limitations on each case doesn’t run out before the agency makes an effort to actually collect the fines.

So, the kerfuffle over the FCC claiming warrantless inspection powers looks like a tempest in a teapot when compared against the reality of the FCC’s powers to inspect, fine and collect. Nevertheless, we should be critical and mindful of any government agency’s claim that it has the right to make warrantless inspections of our private property. Even when it comes to licensed broadcasters the right to inspect is not absolute; the obligation to let the FCC inspect your transmitter only extends as far as your desire to keep your broadcast license. Still, I’ll be glad if an intrepid attorney or radio pirate wants to challenge the FCC’s claimed right to inspect in court.

Catch up with the mediageek radioshow: New FCC Chairman & FCC Enforcement 2008

If you haven’t been keeping up with the mediageek radioshow or subscribing to the podcast, now is a good time to listen to this week’s show featuring our favorite FCC watcher, Matthew Lasar. We talk about the man reported to be Obama’s pick for FCC Chair, Julius Genachowski, and what his appointment to the FCC might mean for internet freedom and media ownership.

Listen to this show right now:

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The first show of the new year featured my annual year in review discussion with John Anderson of DIYmedia.net. In the first half of the program we noted the relative lack of progress on many issues and discussed Larry Lessig’s call to get rid of the FCC. For the second half we got down to brass tacks reviewing John’s research on FCC enforcement action against unlicensed broadcasters in 2008 — a whole lotta smoke, not much fire. Ragnar also excerpted a portion of this on his Pirate’s Week podcast.

Listen to part one of the year-in-review:

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Listen to part two, all about FCC enforcement in 2008:

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Catching up with friends

My pals on the internets have been keeping busy informing the masses about what’s really going on with overlords of our media environment. If you don’t keep up with Matthew Lasar’s Ars Technica articles or John Anderson’s DIYmedia missives, here’s some recent posts you should check out:

• Matthew reports that FCC Democrat Jonathan Adelstein is now on board to approve the Sirius/XM satellite radio merger, but only with significant conditions. This makes him commissioner #2 after Chairman Martin. Matthew also digs up some interesting dirt about Commissioner Tate tapping industry lobbyists for advice.
• John comments on the “glimmer” of hope that the FCC would take real action against Comcast for its BitTorrent filtering being downgraded to a “mirage.”
  

  After about a day and a half of happy-buzz, Martin and the FCC clarified their position – Comcast will not be substantially penalized in any meaningful fashion for its data-discrimination practices. There will be no further investigation, no priority inquiry, not even a monetary forfeiture: instead, the FCC will require the company to “disclose” its bandwidth-management practices and “encourage” Comcast to adopt more “protocol-agnostic” methods of shaping the traffic that flows over its pipes.

• Back in June John noted the current trends in FCC enforcement action against unlicensed broadcasters, observing that “the FCC is on relative track to meet its record-breaking enforcement effort of last year.” However, the FCC isn’t collecting any more financial forfeitures, and
  

  Although the FCC is getting more diligent about reducing the time between finding out about a pirate and making contact with the station, there is no obvious correlation between a diminution of stations on the air as a result.