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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                            )                                      
                                                                   
                            )                                      
                                                                   
     In the Matter of       )   File No.: EB-FIELDSCR-12-00004798  
                                                                   
     Fabrice Polynice       )   NAL/Acct. No.: 201332600001        
                                                                   
     North Miami, Florida   )   FRN: 0022240279                    
                                                                   
                            )                                      
                                                                   
                            )                                      


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: December 5, 2012 Released: December 5, 2012

   By the Resident Agent, Miami Office, South Central Region, Enforcement
   Bureau:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
       that Fabrice Polynice apparently willfully and repeatedly violated
       Section 301 of the Communications Act of 1934, as amended (Act), by
       operating unlicensed radio transmitters on the frequency 90.1 MHz in
       North Miami, Florida. We conclude that Mr. Polynice is apparently
       liable for a forfeiture in the amount of twenty five thousand dollars
       ($25,000).

   II. BACKGROUND

    2. While conducting routine monitoring of the airwaves, agents from the
       Enforcement Bureau's Miami Office (Miami Office) determined that an
       unlicensed radio station was operating on the frequency 90.1 MHz from
       multiple locations, presumably to evade detection. On six different
       days during March to July 2012, agents from the Miami Office used
       direction-finding techniques to locate the source of radio frequency
       transmissions on the frequency 90.1 MHz and traced it to three
       separate locations in North Miami. The agents made signal strength
       measurements at each of the three locations, and determined that the
       signals on 90.1 MHz exceeded the limits for operation under Part 15 of
       the Commission's rules (Rules), and therefore required a license. The
       Commission's records showed that no authorization was issued to Mr.
       Polynice or to anyone else for operation of an FM broadcast station at
       or near any of the three locations. The unlicensed station continued
       to operate at one of the locations even after federal marshals seized
       the radio transmitting equipment located at another location.

    3. The agents from the Miami Office knew the three locations were
       broadcasting the same station because they heard common elements at
       all three locations. The agents heard the station identify or refer to
       itself as "Touche Douce" at the first two locations. The agents heard
       a disc jockey (DJ) identify himself live on the air as DJ "Paz" and
       announce Mr. Polynice's phone number of record as the station's phone
       number at the first location. The agents again heard the station
       announce Mr. Polynice's phone number on the air and an upcoming event
       featuring DJ "Paz" from the third location. The agents also observed,
       in two of the station locations, computers with open audio playlists
       called "radiotouchedouce," as well as media documents and folders
       reflecting the name "Paz."

    4. The agents determined that Mr. Polynice is DJ "Paz." The agents found
       information on the Internet identifying Mr. Polynice as DJ "Paz" and
       connecting him to "Touche Douce." Florida Department of State Division
       of Corporations records also list Mr. Polynice as the registered agent
       for a business called "Touche Douce Ent Inc." Webpages for Radio
       Touche Douce clearly state that the station operates on 90.1 MHz from
       Mr. Polynice's address of record and list Mr. Polynice's phone number
       of record. Mr. Polynice's photograph is also posted on several
       webpages with captions identifying him as DJ "Paz." Finally, the
       agents confirmed that Mr. Polynice has a history of operating
       unlicensed radio stations in the State of Florida. In 2006, Mr.
       Polynice was convicted and sentenced to one year of community
       supervision by the State of Florida for violating a state statute that
       prohibits individuals from operating an unlicensed radio station in
       the State.

   III. DISCUSSION

    5. Section 503(b) of the Act provides that any person who willfully or
       repeatedly fails to comply substantially with the terms and conditions
       of any license, or willfully or repeatedly fails to comply with any of
       the provisions of the Act or of any rule, regulation, or order issued
       by the Commission thereunder, shall be liable for a forfeiture
       penalty. Section 312(f)(1) of the Act defines "willful" as the
       "conscious and deliberate commission or omission of [any] act,
       irrespective of any intent to violate" the law. The legislative
       history to Section 312(f)(1) of the Act clarifies that this definition
       of willful applies to both Sections 312 and 503(b) of the Act, and the
       Commission has so interpreted the term in the Section 503(b) context. 
       The Commission may also assess a forfeiture for violations that are
       merely repeated, and not willful.  The term "repeated" means the
       commission or omission of such act more than once or for more than one
       day.

   A. Unlicensed Broadcast Operations

    6. The evidence in this case is sufficient to establish that Mr. Polynice
       violated Section 301 of the Act. Section 301 of the Act states that no
       person shall use or operate any apparatus for the transmission of
       energy or communications or signals by radio within the United States,
       except under and in accordance with the Act and with a license granted
       under the provisions of the Act. As the record shows, on six different
       days during March to July 2012, agents from the Miami Office
       determined that an unlicensed radio station was operating on the
       frequency 90.1 MHz from three different locations in North Miami,
       Florida. A review of the Commission's records revealed that no license
       or authorization was issued to anyone to operate a radio station on
       90.1 MHz at any of these locations. On multiple days, agents from the
       Miami Office heard the station identify itself on the air as "Touche
       Douce" and announce Mr. Polynice's personal telephone number as the
       station's telephone number. The agents also heard a DJ identify
       himself live on the air as DJ "Paz." In this regard, the agents found
       several webpages identifying Mr. Polynice as DJ "Paz" and connecting
       "ToucheDouche" to his address of record and phone number.  The
       totality of the evidence convinces us that Mr. Polynice is DJ "Paz"
       and that it was he who operated the unlicensed station. Because Mr.
       Polynice consciously operated the station and did so on more than one
       day, the apparent violations of the Act were both willful and
       repeated. We therefore conclude, based on the evidence before us, that
       Mr. Polynice  apparently willfully and repeatedly violated Section 301
       of the Act by operating radio transmission equipment without the
       required Commission authorization.

   B. Proposed Forfeiture Amount

    7. Pursuant to the Commission's Forfeiture Policy Statement and Section
       1.80 of the Rules, the base forfeiture amount for operation without an
       instrument of authorization is $10,000. In assessing the monetary
       forfeiture amount, we must also take into account the statutory
       factors set forth in Section 503(b)(2)(E) of the Act, which include
       the nature, circumstances, extent, and gravity of the violations, and
       with respect to the violator, the degree of culpability, any history
       of prior offenses, ability to pay, and other such matters as justice
       may require. In doing so, we find that the violations here warrant a
       proposed forfeiture above the base amount. The record shows that Mr.
       Polynice has a history of operating a radio station without a license,
       which demonstrates a complete disregard for Federal and State
       authorities and their laws. Despite being arrested and convicted (in
       2006) for violating the State of Florida's prohibition against
       operating an unlicensed radio station within the State, Mr. Polynice
       continued to operate an unlicensed radio station at three separate
       locations in North Miami. Indeed, Mr. Polynice continued to operate
       his station from another location after his radio transmitting
       equipment at a previous location had already been seized by federal
       marshals. Thus, there is no dispute that Mr. Polynice was aware that
       his actions were illegal and that he intentionally engaged in
       efforts-by moving his station from one location to another-to evade
       detection from Federal and State authorities. Based on the evidence
       before us, including consideration of the egregiousness of the
       violations, the history of prior offenses, and the degree of
       culpability, we find that the violations here warrant a total upward
       adjustment of $15,000. Applying the Forfeiture Policy Statement,
       Section 1.80 of the Rules, and the statutory factors to the instant
       case, we conclude that Mr. Polynice is apparently liable for a total
       forfeiture of $25,000. We further caution Mr. Polynice that future
       violations may subject him to more severe enforcement action,
       including but not limited to larger monetary forfeitures, criminal
       prosecution, and the in rem seizure of his equipment.

   IV. ORDERING CLAUSES

    8. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
       Communications Act of 1934, as amended, and Sections 0.111, 0.204,
       0.311, 0.314, and 1.80 of the Commission's rules, Fabrice Polynice is
       hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
       amount of twenty five thousand dollars ($25,000) for violations of
       Section 301of the Act.

    9. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
       Commission's rules, within thirty (30) calendar days of the release
       date of this Notice of Apparent Liability for Forfeiture, Fabrice
       Polynice SHALL PAY the full amount of the proposed forfeiture or SHALL
       FILE a written statement seeking reduction or cancellation of the
       proposed forfeiture.

   10. Payment of the forfeiture must be made by check or similar instrument,
       wire transfer, or credit card, and must include the NAL/Account number
       and FRN referenced above. Mr. Polynice shall also send electronic
       notification on the date said payment is made to SCR-Response@fcc.gov.
       Regardless of the form of payment, a completed FCC Form 159
       (Remittance Advice) must be submitted. When completing the FCC Form
       159, enter the Account Number in block number 23A (call sign/other ID)
       and enter the letters "FORF" in block number 24A (payment type
       code).   Below are additional instructions you should follow based on
       the form of payment you select:

     * Payment by check or money order must be made payable to the order of
       the Federal Communications Commission.  Such payments (along with the
       completed Form 159) must be mailed to Federal Communications
       Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
       via overnight mail to U.S. Bank - Government Lockbox #979088,
       SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101. 

     * Payment by wire transfer must be made to ABA Number 021030004,
       receiving bank TREAS/NYC, and Account Number 27000001.  To complete
       the wire transfer and ensure appropriate crediting of the wired funds,
       a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
       the same business day the wire transfer is initiated. 

     * Payment by credit card must be made by providing the required credit
       card information on FCC Form 159 and signing and dating the Form 159
       to authorize the credit card payment. The completed Form 159 must then
       be mailed to Federal Communications Commission, P.O. Box 979088, St.
       Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
       Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
       Louis, MO 63101. 

   11. Any request for full payment under an installment plan should be sent
       to:  Chief Financial Officer-Financial Operations, Federal
       Communications Commission, 445 12th Street, S.W., Room 1-A625,
       Washington, D.C.  20554.  If you have questions regarding payment
       procedures, please contact the Financial Operations Group Help Desk by
       phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.  

   12. The written statement seeking reduction or cancellation of the
       proposed forfeiture, if any, must include a detailed factual statement
       supported by appropriate documentation and affidavits pursuant to
       Sections 1.16 and 1.80(f)(3) of the Rules. Mail the written statement
       to Federal Communications Commission, Enforcement Bureau, South
       Central Region, Miami Office, P.O. Box 520617, Miami, FL 33152-0617,
       and include the NAL/Acct. No. referenced in the caption. Mr. Polynice
       also shall e-mail the written response to SCR-Response@fcc.gov.

   13. The Commission will not consider reducing or canceling a forfeiture in
       response to a claim of inability to pay unless the petitioner submits:
       (1) federal tax returns for the most recent three-year period; (2)
       financial statements prepared according to generally accepted
       accounting practices (GAAP); or (3) some other reliable and objective
       documentation that accurately reflects the petitioner's current
       financial status. Any claim of inability to pay must specifically
       identify the basis for the claim by reference to the financial
       documentation submitted.

   14. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
       for Forfeiture shall be sent by both Certified Mail, Return Receipt
       Requested, and First Class Mail to Fabrice Polynice at his address of
       record.

   FEDERAL COMMUNICATIONS COMMISSION

   Steven DeSena

   Resident Agent

   Miami Office

   South Central Region

   Enforcement Bureau

   47 C.F.R. S: 301

   The three locations, the specific dates that the unlicensed radio stations
   were being investigated, and the resulting actions were as follows-

   Location "A" on NE 131st Street, North Miami: March 14, 2012 (signal
   strength measurements taken); May 9, 2012; June 13, 2012; July 3, 2012
   (signal strength measurements taken); and July 5, 2012 (agents observed
   the transmitting equipment during an inspection, but the station was not
   on the air; transmitting equipment seized by federal marshals);

   Location "B" on NW 2nd Avenue, North Miami: May 9, 2012 (signal strength
   measurements taken); and July 12, 2012 (signal strength measurements
   taken);

   Location "C" on NE 136th Street, North Miami: July 5, 2012 (signal
   strength measurements taken); and July 9, 2012 (agents observed the
   transmitting equipment during the inspection, but the station was not on
   the air).

   Part 15 of the Rules sets out the conditions and technical requirements
   under which certain radio transmission devices may be used without a
   license. In relevant part, Section 15.239 of the Rules provides that
   non-licensed broadcasting in the 88-108 MHz band is permitted only if the
   field strength of the transmission does not exceed 250 mV/m at three
   meters. 47 C.F.R. S: 15.239.

   See United States v. Any and All Radio Station Equip., No. 12-22249 (S.D.
   Fla. July 10, 2012) (executed warrant). See also 47 U.S.C. S: 510.

   See Lexis Nexis Investigative Portal Homepage,
   http://www.lexisnexis.com/government/solutions/investigative/, Person
   Report (last visited Oct. 12, 2012).

   The agents inspected two of the station locations when Mr. Polynice was
   not present. One inspection was conducted following seizure of the
   transmitting equipment by federal marshals. The other was conducted with
   the residents of the property, and they were issued an on-scene Notice of
   Unlicensed Operation. See Jonacin Jules and Fifie Chandler, Notice of
   Unlicensed Operation (July 9, 2012) (on file in EB-FIELDSCR-12-00004798)
   (warning that operation of an unlicensed radio station violates Section
   301 of the Act and could subject the violators to monetary forfeitures,
   seizure of equipment, and possible arrest).

   Florida Department of State Division of Corporations Homepage,
   http://www.sunbiz.org/ (last visited Oct. 12, 2012).

   See, e.g., Facebook page at www.facebook.com/RadioToucheDouce (last
   visited Oct. 12, 2012) ("Touche Douce does it all. Our radio station  and
   wireless store is located at [address redacted], Miami, FL 33161 . . .
   Make sure listen to the radio show on 90.1 . . . DJ Paz Official Birthday
   Bash . . . [phone number redacted]."); Myspace page at
   www.myspace.com/radiotouchedouce (last visited Oct. 12, 2012) ("Touche
   Douce 90.1 FM . . . For more information call [phone number redacted] . .
   . ."); Twitter page at http://twitter.com/#!/touchedouce/ (last visited
   Oct. 12, 2012) ("tweet" from "touchedouce" states "Dj Paz live on
   Toucedouce 901fm"). See also Lexis Nexis Investigative Portal Homepage,
   http://www.lexisnexis.com/government/solutions/investigative/, Person
   Report (last visited Oct. 12, 2012).

   See, e.g., Facebook page at www.facebook.com/paz.touchedouce (last visited
   Oct. 12, 2012) (showing a photograph of Mr. Polynice with caption "Worked
   at radio touchedouce"); Myspace page at
   www.myspace.com/radiotouchedouce/photos (last visited Oct. 12, 2012)
   (numerous photographs of Mr. Polynice identified as DJ "Paz"); Belfim
   website (Haiti Internet Movie Database) at
   http://www.belfim.com/moun.php/1659 (last visited Oct. 12, 2012)
   (photograph of Mr. Polynice by "Hi, my name is Fabrice Polynice . . .
   Fabrice Polynice, Haitian DJ turned actor, is better known as Paz, the
   host of Radio Touchem Douce in Miami, Florida").

   LexisNexis Investigative Portal Homepage,
   http://www.lexisnexis.com/government/solutions/investigative/, Person
   Report (last visited May 24, 2012). On November 18, 2006, Mr. Polynice was
   arrested by Miami-Dade Police for illegal radio transmission and
   interference (Miami-Dade Court Case Number F06038860) and sentenced to one
   year community supervision (Florida Department of Corrections Case Number
   0638856).

   47 U.S.C. S: 503(b).

   47 U.S.C. S: 312(f)(1).

   H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
   [inserted in Section 312] defines the terms `willful' and `repeated' for
   purposes of section 312, and for any other relevant section of the act
   (e.g., Section 503) . . . . As defined[,] . . . `willful' means that the
   licensee knew that he was doing the act in question, regardless of whether
   there was an intent to violate the law. `Repeated' means more than once,
   or where the act is continuous, for more than one day. Whether an act is
   considered to be `continuous' would depend upon the circumstances in each
   case. The definitions are intended primarily to clarify the language in
   Sections 312 and 503, and are consistent with the Commission's application
   of those terms . . . .").

   See, e.g., Application for Review of Southern California Broadcasting Co.,
   Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991), recons. denied,
   7 FCC Rcd 3454 (1992).

   See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
   Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais
   Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable
   television operator's repeated signal leakage).

   Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
   to violations for which forfeitures are assessed under Section 503(b) of
   the Act, provides that "[t]he term 'repeated', when used with reference to
   the commission or omission of any act, means the commission or omission of
   such act more than once or, if such commission or omission is continuous,
   for more than one day." See Callais Cablevision, Inc., 16 FCC Rcd  at
   1362.

   47 U.S.C. S: 301.

   The record evidence also includes public websites where Mr. Polynice is
   seen promoting the station and identifying himself as DJ "Paz." See supra
   note 9.

   The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
   of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
   12 FCC Rcd 17087 (1997) (Forfeiture Policy Statement), recons. denied, 15
   FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.

   47 U.S.C. S: 503(b)(2)(E).

   See, e.g., Whisler Fleurinor, Notice of Apparent Liability for Forfeiture,
   27 FCC Rcd 489 (Enf. Bur. 2012) (proposing $25,000 forfeiture for repeat
   unlicensed operations, in violation of Section 301 of the Act, and after
   issuance of forfeiture order for multiple violations of the same).

   See 47 U.S.C. S:S: 401, 501, 503, 510.

   47 U.S.C. S:S: 301, 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314,
   1.80.

   An FCC Form 159 and detailed instructions for completing the form may be
   obtained at http://www.fcc.gov/Forms/Form159/159.pdf.

   See 47 C.F.R. S: 1.1914.

   47 C.F.R. S:S: 1.16, 1.80(f)(3).

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission DA 12-1952

                                       6

   Federal Communications Commission DA 12-1952