In a slap to the radio industry that was more stinging to the face than to the wallet, the FCC last week hit Infinity Broadcasting with $357,000 in indecency fines for the St. Patrick's Cathedral sex stunt orchestrated by shock jocks Opie & Anthony two summers ago and aired by WNEW-FM New York and 12 other company stations.
But not everybody was impressed, including FCC Commissioner Michael Copps, who called the fine a "timid" wrist slap against Infinity and parent company Viacom, the country's third-largest media conglomerate. The agency also threatened to subject Infinity to license-revocation hearings if serious violations continue.
"Viacom could pay this entire fine by tacking just one more commercial onto one of its prime time TV shows and probably pocket a profit to boot," Copps said in his written dissent. "Some punishment!"
First Amendment purists, on the other hand, warned that the FCC's concerted effort to quash raunchy DJs will launch a battle over free-speech rights that will take the agency's indecency restrictions all the way to the Supreme Court.
"It looks like they're searching for a test case," said Robert Corn-Revere, of Washington law firm Davis Wright Tremaine.
Each of the stations was fined $27,500—the maximum for a single indecency violation.
Commissioners Kevin Martin and Jonathan Adelstein agreed with the fines but called on the FCC to impose higher fines in the future if station owners repeatedly violate restrictions on indecent broadcasts and to finally wield its never used authority to revoke licenses of egregious offenders.
"Our fines, or other appropriate enforcement actions, should be sufficient" to deter airing of indecent programming when children are likely to be in the audience, Adelstein said.
The latest fine, while not large enough to do much damage to Viacom's bottom line, is nevertheless one of the largest indecency fines ever proposed by the FCC.
Chairman Michael Powell issued no statement, but an aide said the formal order reflects his views.
The incident, in which the Opie & Anthony Show staged and reported on a couple allegedly having sex inside the cathedral, created a furor among Catholics and others, forcing executives from parent company Viacom to apologize to the church and fire program hosts Greg Hughes and Anthony Cumia. The FCC said it received more than 500 complaints.
Viacom officials won't comment on the fine until they file a formal response with the FCC. "We've been afforded an opportunity to respond, and we intend to do so," said a corporate spokesman. Viacom has contended that the incident didn't rise to the FCC's standard for indecency, although it was "fundamentally unacceptable" according to the company's own programming standards.
The FCC didn't buy that argument, saying that even though the description of the couple's actions was primarily euphemisms for sexual positions or organs, the meanings were unmistakable. For instance, the couple was reported engaging in a "balloon knot," and "ruby red bag" was used as a term for scrotum, the commission said.
Adding a bizarre twist to the incident, the man purportedly involved in the sex act died of a heart attack Sept. 25 at his Virginia home. Brian Florence, 38, was to have gone on trial for disorderly conduct the next day for his role.
The FCC chose to impose the maximum fine on the multiple stations because Opie & Anthony had aired similar escapades prior to the Aug. 16, 2002, cathedral incident and had received numerous indecency fines. The cathedral broadcast was part of an Opie & Anthony contest dubbed "Sex for Sam." One of five participating couples was to have accompanied the program's crew to a tour of the Sam Adams Brewery in Boston. To win the trip, a pair needed to accumulate the most points for having sex in risky locations.
Only two months prior to the St. Pat's fiasco, Infinity was fined $21,000 for three Opie & Anthony shows that made graphic references to incest and sex with underage girls. Infinity's personalities have been among the most high-profile shock jocks over the past decade. Infinity stations were fined $1.7 million in 1995 to settle an indecency case involving Howard Stern.
The string of transgressions provoked the FCC to first make the revocation threat in April, when it proposed a $27,500 fine against Infinity's WKRK-FM Detroit for a January 2002 Deminski & Doyle show in which nine callers each described a different extreme or violent sexual act.
Although many radio groups have absorbed FCC indecency fines as a cost of business, a license revocation could wreak financial havoc. WKRK-FM, a talker doing roughly $8 million in annual revenues, could be worth as much as $45 million, one industry analyst estimated.
Separately, the FCC fined Clear Channel's WWDC-FM Washington $55,000 for two May 2002 broadcasts of Elliot in the Morning in which jocks asked high school girls about their sexual activities and made repeated references to oral sex. The station was owned by AMFM when the violation occurred.