Infinity Radio is refusing to pay a proposed $357,000 indecency fine for its infamous 2002 Opie & Anthony broadcast from St. Patrick’s Cathedral in New York.
Infinity officials argue the FCC overstepped its authority by levying a fine against WNEW(FM) and then went even further by proposing to punish 12 other company stations that also aired the Aug. 15 program.
"Infinity respectfully declines to pay the proposed forfeiture, and requests that it be canceled as not in accordance with commission precedent," Infinity attorneys told the FCC in the company’s Nov. 12 reply to the FCC’s "notice of apparent liability."
The FCC notice also warned Infinity that any more major violations will likely lead to a license revocation case.
If the full commission upholds the Enforcement Bureau’s proposed fine, continued refusal to pay will force the Justice Department to review the case. If Justice finds the sanction warranted, federal prosecutors will take Infinity to court to obtain payment.
The company complains that the program, which featured an on-site announcer describing alleged sex acts performed by a couple on church grounds, contained only "oblique references and innuendo" and did not violate the FCC’s definition of indecency. "The broadcast was devoid of any descriptive language that could have been unmistakably understood by children," Infinity lawyers say.
Phrases from the broadcast, such as "ruby red bag" and "balloon knot" are too vague to meet the FCC’s benchmark of depicting sexual or excretory functions in manner intended to pander, titillate, and shock, they said.
Indecent broadcasts are prohibited between 6 a.m. and 10 p.m., when children are likely to be listening.
As for fining the 12 other stations that aired the syndicated Opie & Anthony show, Infinity said the stations had discretion to edit the programs and the FCC has no idea whether the content on those stations matched what was broadcast on WNEW.
The FCC’s Oct. 2 notice relies solely on a transcript of WNEW’s broadcast.