Is sex at St. Pat's indecent?

The FCC may have a devil of a time penalizing Infinity Radio's WNEW(FM) in New York over the outrageous sex stunt orchestrated by the station's recently fired shock jocks. But a slap on the wrist for the station may cause an even bigger headache for regulators.

First Amendment attorneys question whether WNEW's broadcast account of a couple allegedly having sex in New York's St. Patrick's Cathedral was graphic enough to result in a fine, much less a license revocation. But they acknowledge that intense public disgust with the episode may prompt Congress or the FCC itself to take a tougher look at the agency's indecency policies.

"Public reaction could prompt political pressure to delve into indecency regulation," said Kathleen Kirby, who represents broadcasters on free-speech issues for Washington law firm Wiley, Rein & Fielding.

Free-speech advocates and family-values groups, despite opposing views on the need for tougher government action to clean up the airwaves, agree that the FCC's enforcement policies are often contradictory and don't offer stations the bright-line rules necessary to determine when a broadcast will cross the line of legality.

Alone at the FCC, Democratic Commissioner Michael Copps has repeatedly criticized the shortcomings of FCC policies and has urged the commission to crack down more frequently on increasingly raunchy shock jocks, whose drive-time programs are filled with crass routines about sex.

"Congress passed laws limiting the broadcast of 'obscene, indecent or profane' language and charged the FCC with the enforcement of these laws," he complained after WNEW jocks Greg "Opie" Hughes and Anthony Cumia aired the cathedral sex coverage. "The FCC has a responsibility to ensure that the indecency laws of the United States are being vigorously enforced."

One industry observer speculated the FCC, recognizing that grounds for an indecency sanction are vague, is focusing instead on whether Infinity officials were fulfilling their obligation as licensees to control what is broadcast over their station. A letter was sent to company executives to find who knew about the Hughes and Cumia-inspired contest encouraging sex in risky places that prompted the St. Patrick's incident.

Any sanction against Infinity for failure to control its licensed station "would be like getting Al Capone for tax evasion," quipped First Amendment attorney Robert Corn-Revere. He predicted an FCC fine for failing to control the station would have a chilling effect on raunchy broadcasts. "[The FCC] would be trying to condition broadcasters' behavior."

FCC Chairman Michael Powell and other members of the commission have been entirely silent on the FCC's general policies since guidelines were issued in April 2001. Completed nearly seven years after a court ordered them, the guidelines were intended to let broadcasters know what types of speech would go too far.

Free-speech advocates, however, complained that the gulf between examples of permissible broadcasts and those that would be forbidden was so great that stations would have no idea when they were near the boundary of acceptable behavior, much less crossing it. For instance, an Oprah
episode featuring specifics on how to improve married sex life was deemed okay, but explicit bits by Howard Stern and "pandering" use of double entendre for sex acts was not.

In June, the FCC created more confusion by dismissing an indecency complaint filed against Entercom's WGR(AM) Buffalo, N.Y., for a gag in which callers were asked to name National Hockey League players and officials they would like to "piss on." The FCC said the routine was not indecent because host Tom Bauerle's use of the phrase was akin to the slang terms for anger, "pissed at" and "pissed off," rather than sexual and excretory activities.

Broadcasters are forbidden from airing obscene programming at all times and must refrain from "indecent" content between 6 a.m. and 10 p.m., when children are most likely to be in the audience. Indecent programming "describes or depicts" sexual or excretory organs or activities in a way that is "patently offensive by contemporary community standards."