Infinity Broadcasting attempted to cut short a no-win battle with the FCC last week by apologizing for a WNEW(FM) contest involving a couple caught allegedly having sex in St. Patrick's Cathedral, then firing the DJs responsible for the stunt and canning their local/syndicated show.
Infinity executives also met with Catholic leaders and FCC officials last week to try to smooth the waters, although a spokesman for parent company Viacom wouldn't say who paid the visits.
Faced with public and media outcry, the FCC began an investigation over WNEW's broadcast, though some free-speech experts say the language aired wasn't specific enough for any sanction to hold up in court.
If history is a guide, Infinity may take the heat off itself and the FCC if there is a sanction. In 1996, with an acquisition by Westinghouse pending, Infinity paid the hefty fines levied against Howard Stern broadcasts despite what many thought to be shaky constitutional grounds for the fines, and the company again could take political heat off itself and the FCC by agreeing to a fine.
By battling, Infinity might score a legal victory but draw unwanted attention to the industry's increasingly raunchy rush-hour shock jocks.
Stations can be fined or lose their licenses over obscene or indecent broadcasts, but standards for sanction are strict. To be indecent, a broadcast must depict sexual or excretory activities in a shocking or pandering way.
Two prominent First Amendment lawyers who reviewed transcripts from the Aug. 15 Opie and Anthony
episode say little graphic language was used other than euphemisms such as "balloon knot" and "two-point conversion" recognizable to few besides regular listeners of the program. Most of the broadcast featured conversation between freelance "spotter' Paul Mercurio, who phoned in the coverage, and a church security guard.
"Where's the sex?" asked Washington attorney John Crigler, who represents poet Sarah Jones in a pending indecency case. "There are a scattering of sexual terms in the program, but there is certainly an argument these are isolated terms."
Said Kathleen Kirby, whose First Amendment clients include the Radio-Television News Directors Association,"Strictly applying the FCC indecency standards, I don't see anything there."
However, if the couple—who were arrested—is found guilty of lewd public behavior, the station could face local sanction for aiding and abetting a crime, they say. Also, the FCC could punish the stations for "inciting or producing imminent lawless action." Few stations have faced either penalty, they say.
Still, the commission hinted it might expand the inquiry to more Infinity stations. In a letter to Infinity on Aug. 22, the FCC ordered the company to identify other outlets that aired the syndicated Opie and Anthony
broadcast and to state whether similar broadcasts were aired previously. Commissioner Michael Copps, who complains that FCC indecency enforcement is too lax, had been calling for an investigation for the past week.
Shortly after the commission launched its review last week, the company fired shock DJs "Opie" and "Anthony," whose real names are Greg Hughes and Anthony Cumia, and canceled their afternoon-drive show, which had been syndicated by Infinity's Westwood One to 18 stations, according to co-owned WCBS-FM. The pair had been off the air since Aug. 16, replaced by their own reruns. Infinity also suspended WNEW General Manager Ken Stevens and Program Director Jeremy Coleman.
The FCC received hundreds of complaints filed by the Catholic League and others. The Catholic League was demanding that the feds revoke Infinity's license for WNEW but backed off after the DJs' firing. An FCC official Friday morning said the inquiry will continue nevertheless.
The incident created a media ruckus in the Big Apple and even drew TV coverage on Good Morning America, The O'Reilly Factor
and other shows.
Infinity apologized and tried its best to control the damage. "WNEW and Infinity Broadcasting do not in any way condone the actions that took place last week," the company said in a prepared statement. "We have taken steps to ensure that this type of incident does not happen again."
The couple's act, in a vestibule near worshippers, was allegedly part of a contest in which six couples were given a list of 54 different high-risk locations for sex in New York City. The couple and Mercurio were arrested when the security guard interrupted the act and Mercurio's broadcast.
"Reporting sexual intercourse live on the air in a very busy Catholic cathedral more than satisfies your requirement that an incident appeals to the prurient interest," the Catholic League said in its complaint.
Infinity must reply to the FCC's inquiry by Sept. 11.
Hughes and Cumia were responsible for three previous broadcasts that brought $21,000 in FCC fines against WNEW. The broadcasts made graphic references to incest and sex with underage girls.
In 1998, a Massachusetts station fired the pair for falsely announcing on April Fool's Day that Boston Mayor Thomas M. Menino had died in a car crash.