FCC Affirms Maximum Penalty For Miami Pirates

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RBR+TVBR INFOCUS


NORTH MIAMI, FLA. — The FCC at its September 2017 Open Meeting proposed a $144,344 fine — the highest it is authorize to hand out — to Fabrice Polynice and Harold and Veronise Sido.

Polynice is the individual who has been determined to be responsible for a Haitian Creole station operating for several years at 90.1 MHz, audible across much of the Miami-Fort Lauderdale market. The property owners of locales where Polynice operated his pirate radio stations — the Sidos — were also tied to the Notice of Apparent Liability for Forfeiture, a first for the Commission.

Ten months later, this pirate radio station is still broadcasting. On Thursday, the FCC moved forward with a Forfeiture Order.


RBR+TVBR OBSERVATION: “OOH … The FCC is fining us. And??” At this point, do you really think Polynice really cares? FULL TEXT BELOW FOR MEMBERS ONLY.


 

In its Forfeiture Order, the Commission reiterated that it takes “very seriously” allegations of unauthorized broadcasting.

It again mentioned interference concerns to licensed stations that “inform their listeners of important public safety messages, including Emergency Alert System (EAS)
transmissions that provide vital information regarding hazardous weather events and other dangers to the public.”

Interestingly, Mr. Polynice filed a response to the September 2017 NAL, separately from a response to the Sidos.

“After reviewing both responses, we find no reason to cancel, withdraw, or reduce the proposed penalty, and assess the $144,344 forfeiture the Commission previously
proposed,” the Commission ruled.

Why would it? Here is this enclave of Miami-Dade County some 25 minutes from South Beach, pirate radio activity has been rampant for 20 years and counting. One operator gets shuddered, as was the case with “Vibez 101.9” many years ago, and others appear.

The most flagrant of the unlicensed operators found from Homestead to Jupiter is perhaps Polynice, the operator of “Radio Touche Douce.” The FCC has been hunting the person behind this pirate station since 2013. It didn’t take much sleuth work: A website with his name featuring information on advertising and event support can be easily found via a web search. Polynice also posted photos of himself on a Facebook page for “Radio Touche Douce.”

A THIN DEFENSE

What did Polynice have to say for himself in his response to the NAL?

He offered several arguments as to why the FCC’s maximum financial penalty should be reduced or cancelled: lack of notice, lack of citation, impermissible selective enforcement, lack of evidence, and inability to pay the proposed forfeiture.

First, Polynice argues that he did not receive the Notices of Unlicensed Operation referred to in the NAL, and therefore he did not have notice that his actions were illegal.

Nice try, buddy.

Second, Polynice asserts that the Commission must send him a citation prior to issuing an NAL against him. Third, Polynice alleges that the Commission has unfairly singled him out in adopting the NAL.

There’s more: Polynice argues that there was no evidence he was broadcasting from the shed on the Sidos’ property, that the agents did not go into the shed, and that because the agents did not see equipment in the shed on the last site visit, he is not liable. Polynice also argues that, because he has no copyright of the names “Radio Touche Douce” or “DJ Paz,” anyone can use those names.

He didn’t mention the photos on Facebook.

Finally, Polynice argues that the proposed fine should be reduced or cancelled because of his inability to pay it.

In their response to the NAL, the Sidos feigned ignorance, claiming that they rented the shed in their yard to Polynice but they “were never involved with, or aware of, any
illegal pirate station operating on our property.”

They wanted the fine withdrawn immediately, as they were “completely unaware of the nature of his business activities.”

How did the Commission respond?

“We have fully considered the legal and factual arguments asserted in both the Polynice NAL Response and the Sido NAL Response, but we find none of them persuasive.”

First, the FCC stated in bold, Illegal Broadcast Station Operators Are Not Entitled to Citations Under the Act.

Second, it added, “The evidence in the NAL Proves that Polynice was an operator of the
unlicensed station.”

The FCC then explained to Polynice, “Those that illegally co-opt radio spectrum for their
own commercial use, such as Polynice, violate the law and endanger the public. They override public interest programming and deprive the public of important public safety information by causing interference to stations that deliver Emergency Alert System (EAS) messages. Moreover, by virtue of operating radio stations without obtaining required licenses, these stations skirt the requirements that apply to licensed stations, such as the requirement to transmit EAS messages.”

Further rejections of Polynice’s defense were explained in the Forfeiture Order.

What about the Sidos?

“We reject the Sidos’ argument that they were unaware of the illegal pirate radio
operations on their property because it is plainly inconsistent with the evidence,” the FCC said. “As we stated in the NAL, the Sidos received numerous verbal and written warnings
from the Commission regarding the illegal radio station operating on their property over a period of years. Moreover, radio equipment was seized from the shed on their property pursuant to a federal court order in 2012.”

Additionally, in December 2016, Mr. Sido reposted on his Facebook page a 2014 video showing that he was present in studio with Polynice during an earlier instance of the illegal operation of the station.

“[W]e find that the detailed evidence, over a period of years, clearly demonstrates the Sidos’ knowledge of and participation in the pirate radio station operation,” the FCC said.

With that, the maximum penalty stands.

What about Polynice’s claim that he can’t pay it? Too bad, the FCC said.

Polynice provided tax returns for years 2014, 2015 and 2016 which purport to show incomes of not more than $16,310 in any of those years.

“We reviewed these documents, but nonetheless decline to reduce the proposed forfeiture based on the longstanding and egregious nature of his misconduct,” the FCC ruled. “Polynice continued to operate an unlicensed FM station after U.S. Marshals seized radio station equipment from the Sido property, despite Polynice’s previous conviction under state law for illegal operation of a radio station, and even though Polynice had already been subject to a prior Commission NAL and Forfeiture Order for illegal operation of a radio station. These prior government actions have had no apparent effect on his
willful violations of state and federal law.”

The Forfeiture Order received the strong support of FCC Commissioner Michael O’Rielly, who earlier this year stepped up his efforts to squash pirates.

He then mentioned the PIRATE Act, Congressional legislation headed to a floor vote in the House of Representatives following the swift passage July 12 of the bill by the House Energy & Commerce Committee.

The legislation, proposed by Reps. Leonard Lance and Paul Tonko, would increase fines for illegal pirate operations to $100,000 per day per violation, from $10,000 per violation, up to a maximum of $2 million. It will also streamline the FCC’s enforcement process and empower state and local law enforcement in combating illegal pirate operations.

A bipartisan amendment offered by Rep. Chris Collins (R-N.Y.) and adopted makes changes to the bill that would require annual enforcement sweeps by the FCC, along with additional monitoring sweeps. His amendment also calls on the FCC to establish a pirate radio broadcasting database.

“The fine against the pirate operator should be much higher, but our forfeiture authority is
capped due to the maximum set out by statute,” O’Rielly said, noting that the original penalty was $710,000 but was reduced based on the statutory maximum.

“This amount pales in comparison to penalties for other violations of Commission rules and is simply not enough to serve as a sufficient deterrent against operating pirate radio stations,” O’Rielly said. “The duration in which this pirate operated emphasizes this point.”

 


RBR+TVBR OBSERVATION: “OOH … The FCC is fining us. And??” At this point, do you really think Polynice really cares? This maximum fine is nothing more than a spanking and if he actually pays, it is simply a cost of doing business, isn’t it? This is where the PIRATE Act needs to be passed. Miami-Dade Police and FBI agents, along with the Enforcement Bureau’s Miami agents, should have jailed this guy’s operation years ago. As noted, U.S. Marshals have already done their job. It didn’t stop Polynice from trying again. He offered a defense, as did the Sidos. They were lame, except for one point — selective prosecution. Yeah, what about all of the other pirates? Why pick on him? Well … because he’s the most egregious of the illegal operators, perhaps? 

As a Los Angeles-based correspondent for the Miami Herald, our editor-in-chief penned several stories about the brazen buccaneers of South Florida, as pirate radio stations proliferated thanks to empty spaces on the dial designed to protect big-watt stations in other markets across the state. Florida is flat; signals from Fort Myers and Orlando can easily be impacted by those from West Palm Beach and Miami, and vice versa.

The most frustrating thing here is that Polynice is the honey badger of pirate broadcasters. With the PIRATE Act, full tranquilization and capture can happen and send a message to others still littering the dial that the government is serious about pirate radio. Until then, Polynice will continue to do what he does best — ignore the FCC and continue operations at 90.1 MHz in North Miami, Fla. at his whim. It’s dark now, but at 11pm that could change.

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