Using the recent FCC fines against Clear Channel Communications for airing indecent material on a Howard Stern radio broadcast as a point of reference, the 1900 complaints against a single episode of the Oprah Winfrey Show should lead to $5.9 million dollars in fines.
From the New York Post
Faithful fans of Howard Stern are washing Oprah Winfrey’s mouth out with soap – they’ve filed 1,900 letters with the FCC complaining that the Queen of Daytime Talk is filthier than the King of All Media.
The angry missives, which demand Winfrey be fined or banished from TV for a sexually explicit show aired March 18, represent the second-largest number of complaints the FCC has received against a single program.
“How can you allow Oprah Winfrey to discuss [anal sex] on a nationally televised show at 4 p.m. when children are home from school, and then persecute Howard Stern for doing no worse at 8 in the morning?” reads one complaint obtained by thesmokinggun.com.
Another writer fumes: “My twin 9-year-old boys . . . heard a description of how to best please a man orally. Get on the ball and fine Oprah. This show was obscene.” The FCC is now investigating the broadcast. Howard Stern is gambling that the FCC will not fine Oprah, thereby exposing their hypocrisy. Leaving aside the likelihood that Stern is correct, for the sake of argument I’m going to assume that the FCC applies the same standards to the Oprah Winfrey Show.
The latest FCC fines levied against the Howard Stern Radio Show were used as a guide in examining the Oprah transcripts (see below). One important portion of the Notice of Apparent Liability (NAL) is highlighted below:
The broadcast over Station WBGG-FM took place after the Commission’s notice that it might treat separate utterances as separate violations.49 We believe that, under the specific circumstances at issue here, it is appropriate to treat the statements by each of the individuals as two separate utterances and therefore two separate violations, contrary to our more traditional approach of treating a specific program or program segment as indecent.
This is an important change in policy. Review of the transcripts in the Oprah case indicates (2) separate indecent segments. Traditionally this would have resulted in a single violation, but now the FCC can find multiple violations from one broadcast.
The Show In Question
Is Your Child Living a Double Life? OAD: 10/2/03 PG, RERUN: 03/18/04
Teens speak about experiences dealing with: sex, drugs, stealing, and self-mutilation.
Oprah: Lets talk about that secret language Michelle.
Oprah: I didn’t know any of this
Michelle: I have yea, I have gotten a whole new vocabulary let me tell ya
Oprah: I did not know any of this
Michelle: Salad tossing, cucumbers, lettuce tomatoes ok
Oprah: ok so so what is a salad toss?
Michelle: ok a tossed salad is, get ready hold on to your underwear for this one, oral anal sex, so oral sex with the anus is what that would be.
Michelle: A rainbow party is an oral sex party. It’s a gathering where oral sex is performed and rainbow comes from all of the girls put on lipstick and each one puts her mouth around the penis of the gentleman or gentlemen who are there to receive favors and makes a mark um in a different place on the penis hence the term rainbow.
Review of the transcript of the Oprah episode indicates at minimum there were (2) violations, using the FCC standards as applied in the case of the Howard Stern Radio Show.
Who Gets Fined?
The FCC levies fines on station licensees. The enforcement actions against syndicated programming is less clear, but most likely each station that aired the episode would be fined in one Notice of Apparent Liability. The Oprah Winfrey Show is syndicated by King World, and is currently broadcast on 211 stations throughout the United States, representing more than 99% of the country. The show in question originally aired October 2, 2003, and was rerun March 18, 2004. The fact that the episode was shown nationwide on two separate occasions would indicate that the amount of any fine would be multiplied by 422 (211 stations x 2 broadcasts). I am unaware of FCC precedent for fining the syndication companies that distribute shows like the Oprah Winfrey Show.
Using the separate utterance directive I determined that at a minimum there where (2) incidents of indecency in the Oprah Winfrey Show broadcast. Using a $7,000 per incident fine, the total fine would be $7,000 x 2 x 422 = $5,908,000
If the maximum allowable penalty per station of $27,500 were applied (though the facts of the case may not support such a fine) the fine would be $27,500 x 422 = $11,605,000. Once the maximum allowable penalty is reached the number of violations is irrelevant.