INFINITY SAYS IT WON'T PAY HEFTY FINE FOR ‘OPIE AND ANTHONY’ SHOW
Infinity Bcstg. told the FCC it didn’t intend to pay a $357,500 fine imposed by the agency for airing a an alleged live sex act in St. Patrick’s Cathedral in N.Y. Infinity, which has another indecency fine pending against it and has settled past indecency charges related to the Howard Stern Show broadcasts to the tune of $1.7 million, said the portions of Aug. 15, 2002, Opie and Anthony Show that the FCC singled out in its Notice of Apparent Liability (NAL) didn’t violate Commission indecency rules, and pursuing the fine signaled a broader effort to impose stricter indecency standards on broadcasters without formally changing its rules.
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“The NAL would… dramatically rewrite the Commission’s definition of indecency to include the sort of oblique sexual references it has previously found, on many occasions, to be nonactionable,” the company said in its Nov. 12 response to the NAL. “The Commission simply asserts that mere references with arguably sexual connotations are sufficient to violate the standard… without so much as an acknowledgment that the approach is being altered. Such a sudden change in an agency application of its rules is contrary to the well-established judicial mandate that an agency make plain the reasons for substantive deviations from past interpretation of its rules.”
In issuing the NAL against Infinity Oct. 2, the FCC cited the “egregious nature of the material.” The show aired on WNEW-FM, N.Y., and was syndicated to 12 other Infinity stations. The FCC proposed fining each station $27,500, for a total of $357,500. The agency also warned Infinity that future major violations were likely to lead to a license- revocation case.
In its filing, Infinity gave several examples of past instances of similar and sometimes more explicit sexual references that went unpunished, and said the FCC had failed to establish a link between the references made and any potential harm to children who may have heard them.
The Commission now must consider Infinity’s response and decide whether to maintain the fine, lower it or kill it. If the Commission votes to fine Infinity, and the company refuses to pay, the case will be turned over the Justice Dept., an FCC Enforcement Bureau official said. An Infinity spokeswoman wouldn’t say whether the company intended to fight the fine in court. Infinity’s lawyers also declined to comment.
This wasn’t the first time the FCC had threatened to revoke an Infinity station’s license. In April, it issued a $27,500 NAL against the company after its WKRK(FM) Detroit aired graphic depictions of a sex act at a time children could be listening. Infinity challenged that fine as well, and the FCC has yet to take further action. In that case, the First Amendment Coalition, an ad hoc group of broadcast license holders and public interest groups, challenged the FCC’s NAL, arguing that the Commission should begin a formal Notice of Inquiry (NOI) to explore the constitutional issues raised by its indecency rules. The United Church of Christ also came to Infinity’s aid, filing comments referring to FCC indecency rules as vague. The church said the FCC should begin a formal rulemaking process if it intended to enforce stricter indecency standards. Neither group could be reached for comment by our deadline. -- J.L. Laws