Academic journal article Federal Communications Law Journal

Arrr! Sever Thee Transmitters! Making Radio Pirates Walk the Plank with Aiding and Abetting Liability

Academic journal article Federal Communications Law Journal

Arrr! Sever Thee Transmitters! Making Radio Pirates Walk the Plank with Aiding and Abetting Liability

Article excerpt

                             TABLE OF CONTENTS  I.   INTRODUCTION                                                  299 II.  THE INTERTWINED FATE OF BROADCAST REGULATION AND PIRATE      RADIO                                                         301      A. Origins of Radio Broadcast Regulation in the United         States                                                     301      B. Pirates of the (Air)waves: The Swell of Unauthorized         Broadcasting                                               303      C. From Radio Pirates to Cellular Ninjas: The Future of         Unauthorized Broadcasting  304 III. UNAUTHORIZED BROADCASTING POSES A UNIQUE ENFORCEMENT      CHALLENGE THAT MAY BE ADDRESSED BY ESTABLISHING      AUTHORITY TO CRACK DOWN ON AIDERS AND ABETTORS OF PIRATE      BROADCASTERS                                                  305      A. The FCC's Enforcement Procedure for Unauthorized         Broadcasters Is an Inadequate Deterrent to Pirates         306      B. Aiding and Abetting Liability Would Cut the Supply Chain         of Essential Resources to Unauthorized Broadcasters        309         1. How the United Kingdom Sank Pirate Radio  310         2. Aiding and Abetting Liability for Securities            Violations                                              311 IV.  THREE WAYS TO CRACK DOWN ON AIDERS AND ABETTORS OF      UNAUTHORIZED BROADCASTING: STATUTE, RULEMAKING, AND      EXISTING CRIMINAL LAW                                         314      A. Congress Should Grant Statutory Authority to the FCC to         Bring Primary or Secondary Liability Enforcement Actions         Against Aiders and Abettors of Pirate Radio                314         1. Primary Liability: The United Kingdom Model             314         2. Secondary Liability: The SEC Model                      315      B. The FCC's Rulemaking Authority Is Sufficient to Support a         Regulation Holding Pirate Radio Aiders and Abettors         Secondarily Liable for Violations of Section 301 of the         Communications Act                                         316         1. The FCC Has Two Sources of Authority to Take Action            Against Radio Pirates: Statutory and Ancillary            Authority                                               317         2. A Regulation Against Aiding and Abetting Unauthorized            Broadcasting Would Survive Scrutiny Under Either            Standard  319      C. Aiders and Abettors of Pirate Radio Could Be Prosecuted         Under the Criminal Code if Radio Pirates Are Prosecuted         for Conversion of Public Property                          320         1. Wireless Spectrum Is Public Property, Conversion of            Which Violates the Criminal Code  321         2. Application of Criminal Liability to Aiders and            Abettors of Pirate Radio                                325 V.   CONCLUSION: A WATERY GRAVE FOR PIRATE RADIO                   326 

I. INTRODUCTION

Since the dawn of broadcasting, interference has been the Achilles' heel of wireless technology. A 1907 report decried the resulting chaos and difficulty of management:

WIRELESS AND LAWLESS--According to advices from Washington, the apparent condition that there is no law giving authority to government officers to protect official wireless stations in the exchange of messages is giving a great deal of trouble to the station at the Washington navy yard. A youth living near by... has set up a station of his own, and takes delight in interpolating messages during official exchanges... The local police authorities were appealed to, but said they had no power to interfere with the young man's experiments. A possible remedy, justified by the political situation, would be to declare a state of war to be existing in the vicinity of the White House. (1) 

The first third of the 20th century was marked by a series of experiments in radio regulation, punctuated by the sinking of the Titanic, World War I, and the birth of the Federal Communications Commission (FCC). …

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