Infinity to FCC: We Won't Pay Fine

Radio group digs in for legal fight over Opie & Anthony

A tough-talking Infinity Radio sounds primed for a court fight against a hefty indecency fine and FCC threat to strip station licenses stemming from the infamous 2002 Opie & Anthony
broadcast from New York's St. Patrick's Cathedral.

Infinity officials insist the FCC overstepped its authority first by proposing a $27,500 fine against WNEW(FM) and then proposing to ding 12 other company stations that aired the Aug. 15 program each by the same amount, for a total of $357,000. "Infinity respectfully declines to pay the proposed forfeiture and requests that it be canceled," company attorneys said in a Nov. 12 reply to the FCC. The Infinity filing was made available by the commission last week.

As part of an Oct. 2 notice of apparent liability, FCC officials also warned Infinity that major violations in the future will likely lead to a license-revocation case—a threat the company decried as a "dramatic escalation" of the government's authority. The FCC has never revoked a license for raunchy broadcasts.

If the 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 force payment.

By "refusing" to pay rather than asking the agency to reconsider, the company appears to be digging for a legal fight that could lead to a major test case for indecency regulation.

First Amendment lawyers say the FCC's current indecency rules have never been tested in court, despite serious doubts about their constitutionality. "The question of the FCC's authority to revoke licenses has never been addressed by the Supreme Court, nor has there been occasion to look at financial penalties," free-speech expert Robert Corn-Revere told BROADCASTING & C ABLE when the WKRK-FM fine was announced.

A legal stand, however, would be a departure for Infinity. In 1995, the company paid a $1.7 million fine to settle a case brought against broadcasts of Howard Stern's show.

The $357,000 fine would be barely noticed by Infinity shareholders even though the $27,500 per station is the maximum that can be charged for a single incident. Revoking a license, however, could eliminate a property worth tens of millions of dollars or more, depending on the market.

The company complains that the program, which featured an on-site announcer's 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 said. Phrases from the broadcast 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.

The FCC so far hasn't bought that argument. In its original liability notice, the commission said the meanings of those terms and others were unmistakable. The term "ruby red bag," for instance, was listed by the FCC as a euphemism for scrotum.

But Infinity contends that the meaning of euphemisms employed in the broadcast would escape children, and many adults, too. By leveling fines against terms only regular Opie & Anthony
fans would know, the FCC has "effectively changed the standard" for what will be considered indecent, Infinity said, adding that the assertion that a listener would inescapably interpret the term "balloon knot" as anal sex is "untenable."

Although truly obscene broadcasts are never permitted, less vulgar broadcasts meeting the indecency definition are prohibited only between 6 a.m. and 10 p.m., when children are likely to be listening.