A Miami-area pirate radio operator is pushing back against a $2.39 million FCC fine, claiming the agency’s penalty is unconstitutional and pointing to a blockbuster Supreme Court ruling that could scuttle how the FCC punishes unlicensed broadcasters.
Fabrice Polynice, who FCC Enforcement Bureau agents found to be operating the unlicensed station Radio Touche Douce from February to March 2023, argues that the penalty violates his constitutional right to a jury trial under the Seventh Amendment in a new filing, referencing recent court rulings that limit federal agencies’ authority to impose civil fines without judicial oversight.
Polynice has a history of additional pirate broadcasting dating back to at least 2012, per the Commission.
In his appeal, Polynice argues that the FCC’s forfeiture process violates constitutional protections affirmed in SEC v. Jarkesy, which found 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 team.
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.
I do think this type of fine is a bit ridiculous. The so called “PIRATE act” is nothing more then a scare tactic and psychological deterrent to those that dare to put an antenna on a transmitter. 99% of people don’t even know how this old technology works, and then those that actually have interest in it get beat to death for wanting to learn engineering on their spare time and share music with their neighbors. These types of fines are without a due process about like red flag laws. And whats even more silly is for federal funds to be spent on something that today, in today’s realistic world of broadcasting where the average consumer doesn’t care and often doesn’t even know how to tune into a terrestrial broadcast signal. This isn’t the 80s and 90s anymore! Then the new tactics of posting the names of offenders along with location and addresses before they have been found guilty in a court of law. I’m a little shocked that it’s seemingly more legal or preferred to encourage black markets drugs and guns or even vandalism then what it is to play with an electronic FM transmitter. Like seriously FCC, who gives a shit today? If anyone does listen to the radio, it’s nothing but homogenized satellite fed trash that you can hop skip and jump across the dial and hear the same shows and music on 200 different stations across the country. To actually hear a pirate would be a refreshing relief that would certainly regain my interest to listen to radio again. My 15 year old is obsessed with her phone and Spotify. She laughs at me when I tell her about how to tune a radio and walks off.
Hey Dave, It’s Steven Zagony, we worked together at Paxson Broadcasting in the mid/late 90’s, how can I contact you?
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