The FCC staff believes that the penance for having sex in a cathedral should be between $7,000 and $27,500, although that is likely to be too little for some commissioners.
According to commission sources, the enforcement bureau is recommending that the FCC fine Infinity Radio's WNEW(FM) New York for an August 2002 broadcast of a phoned-in description of a couple's allegedly having sex in St. Patrick's Cathedral. DJs Greg Hughes and Anthony Cumia instigated the stunt for their Opie & Anthony show. They were fired as a result.
The sources would not reveal the amount of the fine other than to say the figure is more than the minimum $7,000 typically levied for indecency violations but less than the $27,500 maximum a single indecency incident can draw.
It's now up to the five commissioners to decide over the next couple of weeks whether to accept the staff recommendation and issue a Notice of Apparent Liability, the first step in the agency's complex fining procedure.
Commission and industry sources expect the staff recommendation to be accepted, but not without at least one commissioner—Michael Copps—attempting to impose a stiffer penalty. The broadcast prompted public outrage in New York and among Catholics around the country.
Officials at Viacom, Infinity's parent company, had little comment on reports of the recommendation. "After a decision is announced, Infinity intends to formulate a response," said a spokesman.
Copps, for whom tougher enforcement of indecency rules is a priority, has charged that FCC sanctions are little more than slaps on the wrist that do little to stem raunchy programming on the radio dial. He is likely to view the fine in a similar vein and could argue for increasing it well beyond the $27,500 per-incident limit on the grounds that WNEW's Aug. 16, 2002, broadcast was re-aired on other stations and that similar escapades were chronicled on previous Opie & Anthony programs.
The show had been syndicated by Infinity's Westwood One to 18 stations. The incident, which led to the arrest of the couple and field producer Paul Mercurio, was part of a contest concocted by the shock jocks and their producers in which six couples were given a list of 54 different high-risk locations at which to have sex in New York.
First Amendment attorneys have predicted that the FCC would have a hard time making a sanction stick because there was little graphic description of the alleged sex. But an industry source speculated that Infinity might want to put the matter to rest by paying a modest fine rather than endure another round of embarrassment the case would likely cause. Infinity has paid much more to settle Howard Stern indecency fines.
It's possible that Copps will argue that Infinity's license for WNEW should be subjected to a revocation hearing before an agency administrative law judge, given that the FCC had warned the previous April that the next "serious" violation by an Infinity station could warrant stripping a license. The FCC has never sought to revoke a license for indecency. That prospect is a long shot in the WNEW case, however, because the incident occurred months before the revocation warning.
Under FCC rules, broadcasts depicting sexual or excretory functions in a manner intended to pander, titillate and shock are prohibited between 6 a.m. and 10 p.m.
The FCC revocation threat was part of an order explaining a $27,500 fine against Infinity's WKRK-FM Detroit for a 4:30-5 p.m. segment of the Jan. 9, 2002, Deminski & Doyle show, in which nine callers each described a different extreme or violent sexual act.