• by David Kaplan , November 8, 2004

Since the Federal Communications Commission's own reporting cannot determine whether CBS and its parent Viacom knew about the infamous Janet Jackson/Justin Timberlake "wardrobe malfunction" during the Super Bowl Halftime Show, the network should not be forced to suffer any penalties, an FCC filing submitted by Viacom argues.

The 78-page response is dated November 5th, and signed by Salli Frattini, senior vice president of Viacom's MTV Networks. Frattini served as the executive producer of the Super Bowl XXXVIII halftime show.

Viacom was responding to the recommendation of the FCC that the company and its owned and operated stations receive the maximum fine of $550,000 for violating indecency rules governing broadcasts in connection with the performance that included the exposure of Jackson's right breast at the end of her performance with Timberlake. The FCC concluded that the performance was patently offensive to community standards for a prime-time broadcast because it was "clearly graphic" and intended to "pander, titillate or shock."

Further, the FCC is contending that Viacom showed "willful indifference" to the content of the halftime show.

For its part, Viacom called the FCC's conclusion a distortion of the record. "Viacom screened the performers, developed the script [with the CBS Standards Dept.], reviewed the rehearsals and costumes and implemented a five-second delay," the company's statement says. The fact that these measures didn't prevent "the unplanned deviation from the script" does not constitute indifference, the Viacom filing added.

Lastly, Viacom notes that because the breast was shown for 9/16ths of a second and therefore did not "dwell on" or "repeat [the scene] at length," the FCC's test for indecency is not met in this case and the penalty is unwarranted.

The FCC declined to comment on the Viacom response.