The Federal Communications Commission stands behind its decision in September 2017 to levy the largest fine to date against an alleged pirate operator and property owner.
It was back in 2012 that investigators first ran into Fabrice Polynice, a programming provider, along with Harold and Veronise Sido, who own property in North Miami where the station’s transmission equipment was allegedly located. After various complaints and investigations, in 2017 the FCC imposed a penalty of $144,344 against the three for their alleged longstanding joint operation of an unlicensed FM broadcast radio station on 90.1 MHz, which the FCC said Polynice operated from the Sidos’ residence in North Miami.
The investigation showed that Polynice actively promoted and broadcast unauthorized radio transmissions, while the Sidos made their property available and otherwise supported, participated in and acquiesced to the station’s operation.
“[This] item takes enforcement action against intentional violations of our rules by the landlords,” wrote FCC Commissioner Michael O’Rielly when the action was released. “I firmly believe that this is a vital step towards ending the practice of pirate radio operations. If the pirate is unable to find partners that enable the operation, it will have a hard time accessing our airwaves.”
After the initial fine was proposed in 2017, Polynice and the Sidos responded to the FCC with several arguments as to why the forfeiture should be reduced or cancelled — citing lack of notice, lack of citation, impermissible selective enforcement, lack of evidence and an inability to pay the proposed forfeiture.
Among other issues, Polynice argued that he did not receive any Notice of Unlicensed Operation from the FCC and, therefore, he did not have notice that his actions were illegal, he said. Polynice also argued that the FCC is engaging in impermissible selective pirate radio enforcement and that it only has circumstantial evidence about the alleged broadcasts — seeing that the FCC did not directly witness Polynice actually broadcasting on the station, he said.
For example, he argued that there was no evidence he was broadcasting from the shed on the Sidos’ property. 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 said. He also argued that the proposed fine should be reduced or cancelled because of his inability to pay it, the FCC said.
The Sidos also responded to the Notice of Apparent Liability and said they rented the shed in their yard to Polynice but “were never involved with, or aware of, any illegal pirate station operating on our property.”
But after reviewing both responses, the FCC said it found no reason to cancel, withdraw or reduce the proposed penalty, and would assess the $144,344 forfeiture that was previously proposed.
“Contrary to Polynice’s argument, the commission did not need to find Mr. Polynice in the shed in which some of the equipment was operating in order to find him liable for operating an illegal station,” the FCC said. “Evidence demonstrates that Mr. Polynice produced radio programming for an illegal station, and advertised that he did so via social media available to the public.”
When it came to the Sidos’ response, the FCC said the couple had received numerous verbal and written warnings from the FCC regarding the radio station operating on their property over a period of years, including the fact that that radio equipment was seized from the shed on their property in 2012. The station’s broadcast antenna was plainly visible in the Sidos’ backyard, the FCC said. Additionally, in December 2016, Sido reposted on his Facebook page a 2014 video showing he and Polynice in the studio itself.
Initially, the FCC had proposed a much larger forfeiture — that of $710,000 — which was based partly on imposing a base forfeiture of $10,000 for each day the unauthorized radio station was operated. But the maximum forfeiture under the Communications Act in this case is $144,344. And although Polynice provided tax returns for three years that show an income of around $16,310 in each year, the FCC declined to reduce the proposed forfeiture “based on the longstanding and egregious nature of [the] misconduct.”
“A violator’s ‘ability to pay’ is only one of several factors the commission must consider when determining an appropriate forfeiture,” the FCC said.
O’Rielly directly addressed Polynice’s concern that he did not receive a Notice of Unlicensed Operation.
“The commission is not required to issue a citation to those operating a pirate radio station,” O’Rielly said. “Beyond not being required by law, in many instances involving pirate radio, issuing a citation can be counterproductive.
“In a game of whack-a-mole, locating and taking enforcement action against pirate operators is tough enough,” he said. “Warning enterprise pirates that you are on to them can send them underground, or onto another frequency, increasing the time it takes to get the pirate off the air.”