73.854
Part 73, Subpart G, Section 73.854 is a regulation addressing previous unauthorized operations. It's also known as the "Pirate Past Rule".
Background
Following the passage of the Telecommunications Act of 1996, our nation experienced a significant increase in pirate radio activity. Some activists at the time were threatening to put "over 10,000 pirate stations on the air" across the country. The transmitters that many pirate stations used were built from kits and frequently exhibited spurious emissions, which is a risk to non-broadcast safety of life communications. When LPFM was originally being considered, some critics referred to it as "legitimizing pirate radio". At the urging of the National Association of Broadcasters (NAB), the FCC included a rule in the proposed LPFM service that would exclude any individual from being a party to an LPFM application if they had engaged in unauthorized operation unless they either voluntarily ceased operation prior to February 26, 1999 or within 24 hours after being directed by the FCC to cease such operation. This language became the original rule.
Radio Broadcast Preservation Act of 2001
In their push to try to stop LPFM, the NAB lobbied Congress to put substantial restrictions on LPFM stations, especially where it came to third-adjacent channel short-spacing. Congress passed the Radio Broadcast Preservation Act (RBPA) in 2001. In Section 632(a)(1)(B), the law was written to order the FCC to "prohibit any applicant from obtaining a low-power FM license if the applicant has engaged in any manner in the unlicensed operation of any station in violation of section 301 of the Communications Act of 1934 (47 U.S.C. 301).". As a result, the FCC was forced to remove the February 26, 1999 cut-off date and make the ban stand without any allowances. This change was made in the Second Report and Order.
Ruggiero v. FCC
In the 2002 case of Ruggiero v. FCC before the US Court of Appeals, DC Circuit, Ruggiero argued that the lifetime ban was unconstitutional and at first, the Court did agree. Eventually, the Court would vacate their decision, leaving the pirate ban standing.
Local Community Radio Act of 2010
In early January, 2011, President Obama signed the Local Community Radio Act of 2010 (LCRA) into law. While the LCRA did repeal many of the provisions of the RBPA, the pirate radio ban stands until this day.
Nature of the rule
Under the current regulation, LPFM applicants for new stations must answer a certification question that no parties to the application have engaged in unauthorized broadcasting in violation of Section 301 of the Communications Act, which empowers the FCC to require licenses for use of the radio spectrum. After the 2013 LPFM filing window, the rule was further tightened up in order to prohibit an application for an LPFM station that was dismissed due to a party to the application having a pirate past to be amended to remove the offending party and then reinstated under the FCC's nunc pro tunc policy.
Application of the rule
WKMJ Radio Live The People's Station
In the 2013 LPFM filing window, the rule was applied in the case of the application for WKMJ Radio Live The People's Station, Inc. in Pinellas Park, Florida. In that case, the FCC had issued a Notice of Unlicensed Operation against Kervenson Joseph, one of the parties to the application for unauthorized operation that took place on November 13 and 15, 2013, right at the end of the LPFM filing window. In this case, Joseph was also arrested under Florida's pirate radio law. He was never prosecuted. The FCC issued a letter decision on March 16, 2015. The case went to review by the full Commission, twice and both times, the full Commission upheld the Media Bureau's dismissal.
Ministerios del Instituto Biblico Elohim
Also in the 2013 LPFM window, the FCC dismissed the application of Ministerios del Instituto Biblico Elohim in Cypress, Texas. In this case, an investigation started by REC Networks unearthed a prior enforcement action against one of the parties to the application from pirate radio activity that took place in 2006. The FCC granted REC's Informal Objection and the application was dismissed.
Regulatory history
This rule was first enacted in the original 2000 LPFM Report and Order and stated that the rule would apply only if the pirate operation ceased prior to February 26, 1999 or within 24 hours of FCC notification. The rule would be amended in the 2000 Order on Reconsideration to clarify that the "within 24 hours of notification" exception only applied for operations prior to February 26, 1999. In the early 2001 Second Report and Order, the language was changed in order to comply with the Radio Broadcast Preservation Act of 2001. The rule would be amended again in the 2020 LPFM/NCE Administrative Order to prohibit the reinstatement of applications nunc pro tunc when they were dismissed due to a party to the application having a pirate past.
Federal Register citation
85 FR 7889, Feb. 12, 2020
Text of regulation 47 CFR §73.854
§ 73.854 Unlicensed radio operations.
No application for an LPFM station may be granted unless the applicant certifies, under penalty of perjury, that neither the applicant, nor any party to the application, has engaged in any manner, including individually or with persons, groups, organizations, or other entities, in the unlicensed operation of any station in violation of Section 301 of the Communications Act of 1934, as amended, 47 U.S.C. 301. If an application is dismissed pursuant to this section, the applicant is precluded from seeking nunc pro tunc reinstatement of the application and/or changing its directors to resolve the basic qualification issues.