Monday, July 26, 2010

I Don't Like Using Vulgarity on This Site -- but DAMN

I don't want to be Alarmist Alphonse here, but:

This morning the sainted Musers played a piece of tape which was apparently the sounds of a couple having sex behind a closed hotel door in the Musers' hotel in San Antonio.   Recorded live by Gordon Keith.  (The incomparable UnTicket has it.)  Played it maybe a half-dozen times.

Opie and Anthony.  A few months before I came to Dallas they played on their extremely popular New York City radio program an audio tape of a couple having sex.  [CORRECTION 7-27-10:  I believe it was actually a live broadcast.]  As a result, they lost their show and they may even have been syndicated at that time.   (I recall that they went to satellite, now back on terrestrial, I think.)  The FCC assessed a record fine against WNEW of $357,500. 

Now, Opie and Anthony's situation was different.  O&A's good news was that the couple knew they were being taped [broadcast].  Their bad news that the taping was done in St. Patrick's Cathedral on Fifth Avenue.  The New York archdiocese brought major heat on WNEW and with the FCC, and Opie and Anthony were through on terrestrial for quite some time.

Compare and contrast:  The Musers' good news is that their San Antonio hotel is not St. Patrick's Cathedral.  Their bad news is that the couple in question were recorded without their knowledge and consent in a situation where they had an expectation of privacy. 

The same news is that it was an electronic record of a live sex act broadcast over the public airwaves by an FCC-licensed station.

The unknown news is (1) whether the couple ever discovered they had been taped; (2) whether the couple ever discovered that their action was broadcast repeatedly on the air and over the Internet; (3) whether the hotel knew that one set of guests were eavesdropping and recording another; (4) whether anyone who heard the broadcast filed a complaint with the Federal Communications Commission.  (No, of course I won't.)

Does it matter that the couple was so loud that they could be heard outside their hotel door?   That might protect the hearing of it.  I'm skeptical that it would protect the recording of it.  (See below.)   I'm even more skeptical that it would protect the broadcasting of it during morning drive in a major metropolitan area and to the rest of the world via Internet.  Does it matter that the couple is not identifiable on the tape?   Very doubtful (again, see below).

You know, it wouldn't take much.  Someone alerting the hotel.  Someone who knows a couple that was staying on the Musers' floor might say "hey, Gordo taped some couple doing the wild thing on your floor!"   (Corby recently experienced the vast reach of the P1 on his trip to a remote out-of-state spot a lot less likely to harbor P1's than a San Antonio hotel at the beginning of Cowboys' training camp.) This stuff has a way of getting out.  And it's not exactly like no one listens to The Ticket or that Gordon and Craig aren't recognizable by vast numbers of Texans.  [LATER THOUGHT 7-27-10: What if a competitor got some ringer to file an FCC complaint? That's not so far-fetched.]

But broadcast decency isn't the only problem.   Not by a long shot.

Quoting from a 2009 report from the Congressional Research Service titled "An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping":

"It is a federal crime to wiretap or to use a machine to capture the communications of others without court approval, unless one of the parties has given their prior consent. It is likewise a federal crime to use or disclose any information acquired by illegal wiretapping or electronic eavesdropping. Violations can result in imprisonment for not more than five years; fines up to $250,000 (up to $500,000 for organizations); in civil liability for damages, attorneys’ fees and possibly punitive damages[.]"

Hokey smokes, Bullwinkle.

I won't even quote from Section 16.02 of the Texas Penal Code or Section 18.20 of the Texas Code of Criminal Procedure, which also bear rather intimately on this topic. 

(BTW:  I found all this legal stuff in about a half-dozen minutes via Google.)

The Musers, state and federal criminals?  Exposing Cumulus to many-figure liability?  Whoa. 

Let's put that aside and not think about it anymore.  It's unpleasant.  Returning to what seems to me to be the more potentially troublesome issue:  broadcast decency.

Was Your Plainsman offended?  Nope.  I was astounded at the almost incalculable risk of broadcasting that audio, but, eh, you know, it's The Ticket.  I'm not a prude and it didn't violate my standards.  But it's community standards that matter to the FCC.  The community contains lots of folks who have their car radios tuned to those Gentle Ones while driving their kids to school.  That audio was broadcast right in their wheelhouse. 

Oh, Musers, I extravagantly admire you and your program , but you are skating on exceedingly thin ice here.

You might consider excluding that piece of audio from your Marconi submission.


P1 Steven said...

I like to run w/ the theory that this was someone alone in the hotel watching a couple making sweet love on their TV. Just a theory.

The Plainsman said...

You are a true P1, P1 Steven, adopting the Gordon dodge suggested on the showgram, although I can't tell if you're having me on a bit. It's not impossible, I guess, but (1) no music, which even the cheesiest porn employs (or so I'm told); (2) only a single male grunt; (3)silence after the yelping stopped -- unlike a movie. Not an implausible defense, but I don't believe it, and neither do the Musers.

P1 Steven said...

With my familiarity* with hotels, they could have gone to their room & dialed room 911. The culprit would have answered.

The Plainsman said...

P1 S, you lost me with that one.

Douglas Sutherland said...
This comment has been removed by the author.
Douglas Sutherland said...

I believe what the great P1 Steven means is that they could have conceivably have gotten permission from those in the room to play the audio on the air. They noted they were in room '911' so they could have called and asked to use the audio on the air. I doubt that's what happened, but after over 15 years on the air, I have to believe The Musers had some legal trick up their sleeve because it is treading so many fine lines.

The Plainsman said...

It's always Great to Listen to P1 Steven, because P1 Steven was listening a lot harder than I was. THEY NAMED THE ROOM NUMBER? The risks . . . .

I ask myself how likely it was that the Musers got a release from that happy couple. It could have been anyone behind that door -- maybe a blushing young couple of P1's, but maybe a guy cheating on his wife, maybe an executive with a hooker, maybe a Texas Longhorn with a, uh, recruiter.

Well, I haven't heard anything more about it, so looks like no one's going to jail, getting kicked off the air, or fined.

Deep breath.

Anonymous said...

You're awful tightly wound for such a huge P1, Plainsman.

The Plainsman said...

Maybe so, Anonymous. I was thinking about that the other day. A lot of listeners have long commutes or other down time and spend hours with The Ticket every weekday. It does become a part of one's life, and when one hears something like The Musers offered -- something that might threaten the showgram and the station -- it does have an impact.