The FCC should not slap CBS-owned TV stations with a combined $550,000 fine for their Super Bowl halftime exposure of Janet Jackson's right breast because "one cannot pander by accident," CBS said.
In its official response to the Federal Communications Commission's proposed record indecency fine, CBS argued that neither the broadcast network nor MTV, which produced the halftime show, had any idea that former Disney Mouseketeer Justin Timberlake intended to rip off the bodice of Jackson's costume during their halftime show duet, revealing her breast to a shocked nation -- excluding, of course, those for whom Jackson's breasts are old friends, having seen them as far back as 1993 on the cover of Rolling Stone or, more recently, in that HBO special in 2002 in which she was seen tastefully running topless into a waterfall.
"No one at the network knew, or had reason to suspect, that the halftime show would end with a glimpse of nudity," CBS said in its hefty filing with the FCC.
The FCC announced in September that it intended to slap the 20 CBS-owned stations, but not those that are affiliated with CBS and also carried the halftime show, over the incident. CBS said in its response, filed late last week, that the commission reached the "illogical conclusion" that the halftime show was "designed" to pander to, titillate and shock the viewing audience.
"[A]s a matter of simple logic, something cannot be 'designed' without advance knowledge," the network added.
What the FCC actually said in September was that CBS had not exercised enough control over the halftime show to ensure that actionably indecent material would not be aired.
CBS and MTV, the FCC said, had prior knowledge of and "tacitly approved, the sexually provocative nature of the Jackson/Timberlake segment" because officials from both operations had seen them rehearse "Rock Your Body." In their duet, Timberlake sang such lyrics as "Go ahead, girl, just do that [heinie]-shaking thing you do" and "I gotta have you naked by the end of this song," while bumping and grinding with Jackson and grabbing at her bottom. Pretty standard music-video stuff. Additionally, the FCC said, MTV and CBS "extensively promoted this aspect of the broadcast in a manner designed to pander, titillate and shock. [CBS parent company] Viacom made a calculated and deliberate decision to air the Jackson/Timberlake segment containing material that would shock Super Bowl viewers and to accurately promote it as such."
But CBS countered that "a performance cannot be 'intended to titillate or shock' where the shocking parts of the performance were never intended in the first place. One cannot pander by accident."
The commission in September referred to MTV.com's pre-show "news" story in which Jackson's choreographer promised that her performance would include some "shocking moments."
In its response, CBS said the "out-of-context quotation" that appeared in the online story "did not suggest that anything untoward might take place, nor did it put the network on notice that it should take precautions beyond those already in place."
(Those precautions included a five-second delay, which CBS said in its filing is enough time to bleep out obscene words but "does not provide sufficient time to edit video images." Oops on that.)
CBS also said that MTV management personnel who reviewed that online story believed the "shocking moments" promise was a reference to the fact that Timberlake was going to be Jackson's surprise duet partner.
You buying that? Me neither.
And, CBS added, MTV and "Viacom reported that, in any event, those who reviewed the story said the quote did not stand out because such hyperbolic language is not uncommon in the music world."
The FCC also seized upon the fact that after the halftime show, MTV.com posted a story in which it said, "Jaws across the country hit the carpet at exactly the same time. You know what we're talking about . . . Janet Jackson, Justin Timberlake and a kinky finale that rocked the Super Bowl to its core." It added that "fans of Janet Jackson and her pasties" had been in the right place at the right time. (That "Janet Gets Nasty" headline on MTV.com couldn't have helped either.)
But in its filing, CBS explained that "Nasty" headline was unrelated to the halftime show and referred to one of Jackson's signature songs from a 1986 album. And that dropping-jaw bit, CBS explained, was written by a New York-based online editorial producer without consulting any person involved in the planning of the halftime show and without any knowledge that MTV was at the same time preparing an apology regarding the broadcast.
In its 78-page filing, the country's most-watched network also argued that the FCC's standard for indecency is vague and its scope "vastly" expanded of late. CBS also noted that a study announced right around the time the FCC said it would slap the stations with this mondo fine revealed that hardly anyone in the country was shocked by the halftime show and many people think the whole investigation is a waste of taxpayer dollars.
Them's fightin' words -- at least that was the general consensus among those contacted yesterday, who mostly expect CBS to put up a fight over the fine.
In response to CBS's response, the FCC may issue a "never mind" or it could decide to reduce the dollar amount. Really, don't bet on either.
Assuming the FCC stands its ground, CBS can either pay up or not, in which case it's up to the Justice Department to try to collect, which means the whole thing could play out in court. Wouldn't you just love to see FCC Chairman Michael Powell take the stand to explain how the commission determines what is "patently offensive as measured by contemporary community standards for the broadcast medium"?