Arrr! Sever thee transmitters! Making radio pirates walk the plank with aiding and abetting liability.

• Author: Nacheman, Max

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). (2) While in the United Kingdom, regulations secured government control and censorship of the airwaves, (3) in the United States, regulations evolved according to an inverse priority: access. (4) To this day, the fundamental obstacle to efficient use of wireless spectrum is interference from broadcasters competing for access to the airwaves. (5)

At the time of the first broadcast regulations, radio was a newer technology than the Internet is today, (6) yet more than 100 years later, the same physical limitation impedes wireless broadcasting: two signals cannot occupy the same frequency, at the same time, in the same geographic space without causing interference - one signal degrading or destroying the other. (7) To guard against such interference, the FCC was founded with the mandate to "maintain control of the United States over all channels of radio transmission; and to provide for the use of such channels, but not the ownership thereof, by persons for limited periods of time." (8) By establishing the jurisdiction of a federal agency to manage access to the wireless spectrum, Congress sought to ameliorate pervasive interference. (9) The Communications Act further mandated that "No person shall operate any apparatus for the transmission of... communications signals by radio... except with a license... granted under the provisions of this chapter." (10) In so doing, Congress restricted access to the wireless spectrum to only those broadcasters with express consent from the FCC.

Once, unauthorized access was limited by high costs of entry and the physical requirement of proximity of the broadcaster to a transmission source. Neither barrier exists today. A radio transmitter can be installed cheaply and quickly with off-the-shelf parts, while the pirate himself is located well out of range of detection or the jurisdiction of United States law and regulatory enforcers. (11) With barriers to entry low and likelihood of detection slim, there is little to deter pirates from transmitting their unauthorized broadcasts. In circumstances where agents do locate illegal broadcasters, they may be met with judgment-proof defendants who are unable or unwilling to comply with imposed sanctions. (12) Just as the barriers to unauthorized AM-FM broadcasting have decreased as the technology has matured, so too are more advanced wireless technologies progressing toward an enforcement quagmire. Two looming challenges are cellular phone service and mobile broadband.

To reassert its regulatory control of the wireless spectrum, the FCC should seek authority to hold aiders and abettors of unauthorized radio broadcasting liable for violations of the Communications Act. Aiding and abetting has long been a staple of criminal law enforcement, with roots in American law tracing back to 1790. (13) Judge Learned Hand articulated the foundational test for such liability in 1938: the defendant must "in some sort associate himself with the venture, that he participate in it as in something he wishes to bring about, [and] that he seeks by his action to make it succeed." (14) Despite its ubiquity in criminal law, secondary liability has infrequently been included in civil statutes, and the Supreme Court has forbade general application of the modern criminal aiding and abetting provision to civil violations. (15)

This Note will argue that mechanisms to bring enforcement actions or prosecutions against aiders and abettors of Section 301 violations are within reach. Part II provides an overview of the history and necessity of structural broadcast regulations. Part III explains the challenge of holding unauthorized broadcasters accountable, and how secondary liability would undermine pirates' ability to stay on the air. Finally, Part IV explores three avenues to establish secondary liability for violations of Section 301, including: (1) a statutory grant of authority by Congress, (2) exercise of rulemaking authority by the Commission, and (3) application of existing criminal law to prosecute violations of Section 301, thereby making aiders and abettors subject to the Criminal Code's general provision for secondary liability.

2. THE INTERTWINED FATE OF BROADCAST REGULATION AND PIRATE RADIO

   For the first several decades of wireless broadcasting, the field was unregulated. (16) Initially, there was sufficient spectrum for all broadcasters to experiment with the new technology. (17) But as the wireless spectrum's utility became evident and demand for access grew, it became crowded, and interference quickly evolved from an afterthought, to a nuisance, to an obstruction. (18) The regulatory experiments of the early 20th century culminated in the modern system of spectrum management and the birth of a class of subversive broadcasters later known as "pirates."

   1. Origins of Radio Broadcast Regulation in the United States

      Electromagnetic spectrum is a unique natural resource. (19) It exists whether or not organized broadcasts of electricity and magnetism are transmitted through it. (20) While it can be neither created nor destroyed, it can be degraded by irresponsible use like water and air. (21) For that reason, spectrum is known as a "scarce" resource. (22) However, unlike water or air, the moment spectrum stops being used, it reverts to its natural state. (23) Without regulation, spectrum suffers from the tragedy of the commons. (24) Individual users have no incentive to use spectrum efficiently because to do so earns them no savings or advantage. (25) A rational self-interested actor would instead seek to secure maximum use of the spectrum for himself. (26)

      The first attempt at spectrum regulation, the 1910 Wireless Ship Act, granted priority access to spectrum for public safety applications, but did not address the burgeoning crisis of scarcity and interference. (27) Two years later, the Titanic sank along with 1,500 passengers. (28) When it was discovered that rescue efforts were delayed by interference with the Titanic's radio distress calls, Congress responded by passing the Radio Act of 1912, which required the Commerce Department to license radio operators. (29) The Act assigned portions of the spectrum to certain uses and authorized the Department to allocate frequencies to avoid interference. (30) During World War I private radio transmissions were prohibited, and in 1917 the military temporarily acquired complete control over the spectrum. (31) When the public regained access in 1919, the Commerce Department, which had authority only to manage allocation of spectrum but not restrict access to it, was ill-suited to manage the surge in demand. (32)

      In 1927, Congress responded to the overwhelming demand for spectrum access with the Radio Act of 1927, which reflected a philosophical shift in U.S. spectrum management. (33) Unlike the 1912 Act, which presumed that all...