He’s perhaps one of the nation’s most notorious operators of an unlicensed FM radio station. For years, Fabrice Polynice has devoted his time and resources to serving Haitian Creole audiences across a wide swath of South Florida through his “Radio Touche Douce.”
There’s just one huge problem — he’s been using the 90.1 MHz frequency without authorization, resulting in repeated attempts by the FCC to fine Polynice. The latest involves a multimillion-dollar fine.
Now, Polynice has turned to perhaps former FCC Commissioner Nathan Simington in a landmark challenge, claiming a multi-million forfeiture levied against him is “unconstitutional.”
As RBR+TVBR reported on June 9, the FCC days earlier adopted a Forfeiture Order imposing a $2,391,097 penalty against Polynice, also known as “DJ Paz” to many in the Haitian American community of Northeast Miami-Dade County. This fine specifically relates to broadcasts of Radio Touche Douche detected between February 5 and March 5, 2023, by which Polynice “willfully and knowingly did or caused pirate radio broadcasting,” resulting in at least 22 days of violations.
How Polynice would respond was the subject of much speculation that he’d do what he’s done consistently for more than 13 years — nothing. Radio Touche Douce has been operating illegally since at least 2012, the FCC notes. RBR+TVBR has covered Polynice’s travails extensively over the years, with continued operation of an unlicensed FM station even after U.S. Marshals seized his original equipment — never mind the receipt of two prior NALs and Forfeiture Orders for illegal operation of a radio station from the Commission.
Yet, Polynice in late February 2024 responded to its Notice of Apparent Liability for Forfeiture, filing what he incorrectly termed a Petition for Reconsideration. In that communication, Polynice does not contest that he engaged in pirate radio broadcasting. But, he argued that he has an inability to pay the forfeiture and would shortly submit the documentation supporting his assertion. Nearly five months later, on July 19, 2024, Polynice filed a supplement to his response, which contained three years of tax returns. Those documents held zero sway with the Commission, which is holding to its multimillion-dollar fine. That came after Polynice received a $144,344 forfeiture order in 2018 and, before that, a forfeiture order in early 2013.
“We acknowledge that Polynice’s financial documents, standing alone (and if accepted at face value) might support a reduction of the forfeiture,” the Commission ruled. “However, the ability to pay a forfeiture is just one of the criteria we must consider when determining the forfeiture penalty for violations of the Act and the Commission’s rules. As required by the Commission’s rules, we must also consider the nature, circumstances, extent, and gravity of the violations. Section 1.80 of the Commission’s rules also requires that we take into account ‘other matters as justice may require.’ When weighed against these other factors, most notably Polynice’s history of prior violations and the intentional nature of his misconduct, we decline to reduce the proposed forfeiture based on Polynice’s alleged inability to pay.”
Fast-forward to July 10, when word first surfaced in Streamline Publishing’s Radio Ink that Polynice is taking a page out of the Simington playbook by claiming the agency’s penalty is unconstitutional. Why? Like Simington, Polynice and his legal representative point to the Supreme Court’s 2024 SEC vs. Jarkesy ruling. In short, the nation’s highest judicial body neutered an independent agency’s ability to levy a forfeiture, declaring that administrative enforcement proceedings seeking punitive fines fall squarely within the definition of “suits at common law” and must be tried in federal court.
Citing that ruling, Polynice asserts that the FCC’s enforcement process of allowing only a written response and no hearing fails to meet constitutional standards and should be overturned. A white paper by former FCC Deputy General Counsel Peter Karanjia, attached to the petition, supports this interpretation and warns that most FCC forfeiture actions may now be unconstitutional unless Congress reforms the agency’s enforcement powers.
When Polynice’s fine was affirmed by FCC vote in September, then-Commissioner Nate Simington dissented, citing similar reasoning. At the time, Simington said, “Under new and controlling Supreme Court precedent, the Commission’s authority to assess monetary forfeitures as it traditionally has done is unclear. Until the Commission formally determines the bounds of its enforcement authority under this new precedent, I am obligated to dissent from any decision purporting to impose a monetary forfeiture. I call on the Commission to open a Notice of Inquiry to determine the new constitutional contours of Commission enforcement authority.”
While Polynice’s petition leans heavily on recent constitutional rulings, it’s unlikely the FCC will grant reconsideration. The agency has not indicated any intention to revise its enforcement practices in light of Jarkesy, and no legal action has been filed – at least not yet – by Polynice’s representatives.
If Jarkesy were applied to FCC pirate radio enforcement, it could upend the agency’s ability to impose civil penalties against unlicensed broadcasters, effectively stripping the FCC of its primary enforcement tool. Such a shift would leave the Commission with few practical consequences for violators, aside from seizure of equipment or criminal referral in rare cases. Still, no pirate broadcaster has ever successfully challenged the FCC in court. While Polynice’s petition raises high-stakes constitutional questions, it also underscores the legal uncertainty surrounding the future of administrative enforcement in broadcast regulation.
— Reporting by Cameron Coats, in Troy, N.Y., and Adam R Jacobson, in Boca Raton, Fla.
