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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
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Federal Communications Commission DA 12-1952