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Original URL: http://www.theregister.co.uk/2008/05/13/ofcom_pirate_radio/

Ofcom sharpens cutlasses for pirate radio assault

By Bill Ray
Published Tuesday 13th May 2008 11:34 GMT

Ofcom, the UK regulator of all things communicative, is considering everything from ASBOs to covert surveillance to shut down pirate radio stations, according to documents obtained by The Register under the Freedom of Information Act.

The documents present research carried out by Ofcom, trying to explain why pirate radio stations continue to be so popular, then explore new ways the pirates might be silenced. These include arresting them for related offences, seizing private property, and slapping them with ASBOs - the grounds being that broadcasting drum'n'bass is basically antisocial.

Pirate radio stations have been around for decades, and Ofcom tries hard to differentiate the happy crews of the 70s from today's gun-toting, drug-dealing gangsters: the former were, apparently, harmless hippies, while the latter are dangerous criminals. But unlike the regulator's public statements their internal documents make no mention of guns and little reference to drugs - although they do highlight pirate broadcasting interfering with emergency service radios:

"In 2006 Ofcom's field operations team responded to 70 safety-of-life cases (a significant increase from the 41 such cases reported in 2005)."

Interference with commercial stations is more debatable, as pirates won't want to broadcast on a busy frequency. Ofcom found that only 14 per cent of listeners thought their radio was being interfered with by pirates, though the report notes that this is a "listener perception" and could well be inaccurate.

What happened to sweet Caroline?

The original pirates were driven out of business by the launch of legal commercial radio which had the advantage of sinking less often. Today's radio services are considered too bland by many, and pirates offer something different despite a range of commercial licences being issued in the 1990s. The problem is that bland radio appeals to a wider audience, and so makes more money. As the report observes: "Of the stations from that era [the 90s] that are still on the air, only a few (such as Sunrise Radio in London) remain in the hands of the original owners, with most having become significantly more mainstream and broadly-targeted."

For this reason, and the lack of available spectrum, issuing more licences is rejected as an option. "Utilising the commercial radio licensing regime for the purposes set out in this document also risks history repeating itself, whereby formerly illegal stations that were successful in obtaining licences sold them on to large commercial radio groups, which, in many cases, 'mainstreamed' the programming."

So the stations can't be licensed, but punters want to listen to them. 67 per cent of listeners reckon pirate stations play music they can't hear elsewhere, while almost half get more local information from the pirates. So what's a regulator to do?

Current policy is to grab the transmitters, and then try and locate the studio (which will normally be within line of sight). If the studio can be raided then there might be some arrests, and more kit can be grabbed. But arrests generally lead only to police cautions, and the kit is easily replaced, so the number of pirates remains consistent.

Ofcom reckons that pirate radio stations are making up to £5,000 a week by charging DJs to play and selling advertising. Pirates approached by El Reg denied making anything close to that, but that may not matter if Ofcom can convince the Asset Recovery Agency of the validity of the figure, as suggested in the report. The Asset Recovery Agency would have the authority, once a conviction had been obtained, to confiscate property from the pirate to the value of money they believe was made illegally.

Getting a conviction will be easier if Ofcom broadens their net, so pirates could face charges of "possession and intended use of unlicensed equipment" rather than broadcasting itself, and it's not just the pirates that need to be careful as Ofcom intends to "target those who support the radio station... manufacturing or installing transmitters".

Selling radio transmitters has never been illegal before, but Ofcom would like retailers to take more responsibility for checking out their customers, as its recent prosecution of Broadcast Warehouse demonstrates. Broadcast Warehouse wasn't done for supplying kit to a pirate, but the prosecution against them was based on evidence collected during a raid on a pirate station.

Not that Ofcom intends to limit evidence gathering to raids. "A new approach is currently being adopted by Ofcom, whereby in-depth investigations into the individuals involved in the act of illegal broadcasting as being undertaken by our field staff", not to mention use of "investigation powers, such as access to certain data about telephone, email and internet communications used by illegal broadcasters and to undertake covert surveillance [as permitted by] (Regulatory Investigatory Powers Act 2000)".

A question of character

The report also suggests that Ofcom becomes an authorised legislative body under the Regulatory Enforcement and Sanctions Bill, which would give the regulator the ability to hand out fixed-penalty fines without all the mucking about with courts and magistrates and so forth.

The alternative would be to enforce, and strengthen, the "Character of Service" requirements that apply to all radio stations. These specify the kind of music stations are allowed to play, and the character of the radio station. Unfortunately this is exactly the kind of regulation that Ofcom wants to get rid of, believing the free market will always serve the needs of the majority. Character of Service requirements are already much weaker for digital (DAB) stations, apparently allowing them more flexibility to respond to changing fashions, and the weaker requirements are being more widely applied.

Oddly enough, the only station that Ofcom found that commanded the respect of the pirates and their listeners was BBC's 1Xtra. Of course, 1Xtra is DAB-only, so there's plenty of scope left for the pirates - at least until digital conquers all.

Ofcom are planning a major review of analogue broadcasting on both AM and FM, in 2009 and 2010 respectively, and new licences are set to expire in December 2015, when optimists predict digital radio will have taken off.

There is a hope that the problem will solve itself as DAB requires infrastructure beyond most pirates' resources - though if they're really making five grand a week, the investment might prove worthwhile regardless of what Ofcom tries to do about it. ®

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