Viacom Inc. Friday asked the Federal Communications Commission to throw out its indecency finding and record $550,000 TV-station fine for the Justin Timberlake/Janet Jackson Super Bowl reveal.
Viacom suggests the commission has run amok, "no longer recognize[ing] any meaningful limits to its ability to regulate broadcast content," despite Supreme Court warnings about overbroad speech regulation.
Viacom argues that if the decision stands, "it will lead to the end of live broadcasting as we know it by placing broadcasters on notice that they risk massive liability and perhaps even license revocation if they fail to adopt technical measures to avoid the possibility of a spontaneous transgression
Viacom, which last summer pledged to fight an indecency ruling against the incident, made good on its promise in a 94-page letter in which it branded the fine "entirely illogical," and based on erroneous legal conclusions.
The company pointed out the the FCC imposed the maximum fine, even though the FCC did not "directly dispute" a Viacom investigation that "debunked" theories it had been in on the stunt, in which Justin Timberlake ended their duet of "Rock Your Body" by rocking the eagle-eyed and TiVo-owning audience members with a brief reveal of one of Janet Jackson's breasts.
The half-time show was produced by MTV, which is also owned by Viacom.
Viacom argues that "nothing about the performance, as planned and scripted, comes close to anything the FCC has ever sanctioned as indecent," and that it had no knowledge, and could not have been expected to know about, the surprise ending.
It adds that even with the surprise, the broadcast was not indecent, given that the flash was brief, neither explicit or graphic, and did not "dwell" on sexual organs or activities. "Quite obviously, the fleeting exposure of a female breast for 9/16 of a second is not "repeated," and no reasonable construction of the term "willful" applies to an incident that is unknowing and accidental," said Viacom.
Viacom says the fine is unconstitutional because it stretches the historical bounds of indecency beyond recognition. In fact, Viacom argues that it "calls into question the continuing validity of the entire FCC indecency regime, which heretofore has been a "limited constitutional exception to a general rule.""
Challenging the so-called Pacifica Supreme Court decision that upheld the FCC's power to regulate indecency, Viacom argues that it is now "implausible to justify broadcast indecency regulations on the 'uniquely pervasive presence' of broadcasting. In addition to being outmoded, Viacom argues that the FCC's indecency standard is excessively vague.