• by Paul Gough , February 2, 2004

America Online is pursuing makegoods from CBS after being caught in a public relations ringer by Sunday night's bare-breasted antics during the Super Bowl halftime show, a well-placed source tells MediaDailyNews.

The halftime sponsorship was the high-profile centerpiece of an estimated $10 million advertising deal AOL cut with CBS to promote its new TopSpeed service during the Super Bowl. But executives at AOL--as well as CBS and MTV, another Viacom unit that produced the halftime event--were surprised when Justin Timberlake tore Janet Jackson's clothing, exposing one of her breasts at the end of a duet that concluded the halftime show Sunday night. An AOL spokesperson declined to comment about whether AOL was seeking compensation from CBS. CBS and Initiative Media, AOL's media buying agency, didn't return phone calls seeking comment.

AOL is maneuvering for some type of compensation for what has been an embarrassing and potentially costly stunt. The event also drew the ire of federal regulators, who said Monday that it had opened an investigation into the incident, which was seen by some measure of the 143.6 million people (Nielsen estimates) who tuned in to at least some of CBS' Super Bowl coverage. AOL canceled plans to stream the halftime show to its members and to non-members through AOL.com. The plans to stream the show for what was to be nearly a two-week period would have meant a Super Bowl-level of traffic.

The source said AOL had no idea that Timberlake would tear Jackson's costume.

"I think everyone was shocked and taken by surprise. There was not even anything remotely like that," according to a person who was at the show's rehearsal in Houston. "There was no telegraphing that something like this would happen."

That was mirrored by an official statement from AOL.

"While AOL was the sponsor of the Super Bowl Halftime Show, we did not produce it. Like the NFL, we were surprised and disappointed with certain elements of the show," a spokesperson said.

Both CBS and MTV apologized for the incident; in a statement, MTV claimed that it was unintentional and "inconsistent with assurances we had about the content of the performance." CBS said it had seen nothing amiss when it monitored rehearsals in the week before the show.

At least one media director, who asked not to be identified, didn't think AOL had a good case when it came to receiving makegoods.

"There's not much to make good on here, especially when they [CBS] delivered the audience that they did," the media director said. While noting that the event was controversial and newsworthy, the executive also didn't think it hurt any of the parties involved.

"Fallout for who? Everybody's talking about this today. Over the years, the Super Bowl halftime show has faced so much competition--to the point that there are pay-per-view 'Lingerie Bowl' events competing with it," the media director said. "At the end of the day, if this makes people feel that they missed something important, isn't that an advantage to the people who are selling and to the marketers involved? The particular parties involved didn't know that this was going to happen, but it's given power to the notion that you can't afford to miss the Super Bowl halftime show."

It would also be highly unlikely for CBS to dole out makegoods for a Super Bowl, which generally are not guaranteed the way regular prime time TV shows are.

A more likely fallout from the halftime show would be the impact of a Federal Communications Commission investigation announced Monday morning. That would break against Viacom, parent company of CBS and MTV. Viacom has already tangled in recent months with the FCC, which fined its Infinity Broadcasting unit $357,500 for airing a radio program that encouraged a couple to have sex in a New York City Roman Catholic church.

FCC regulations prohibit the broadcast of indecent material when children are watching, particularly during prime time hours. The Super Bowl is usually the most watched program on television every year.

In a prepared statement, FCC Chairman Michael Powell promised swift action in connection with the incident, calling it a "classless, crass, and deplorable stunt. Our nation's children, parents, and citizens deserve better."

The Parents Television Council, which promotes standards in television, said Monday that it had filed an indecency complaint with the FCC. It urged the FCC to fine every station that aired the halftime show, which could cost each CBS affiliate up to $27,500 each and spark a review of the stations' broadcast licenses. An FCC spokesman didn't return calls seeking comment Monday afternoon.

"We do not accept the apology of CBS, nor do we accept the statements of regret by MTV. It is absolutely reckless for CBS to claim that it had no prior knowledge that such activity was likely to take place," said Brent Bozell, president of the Parents Television Council, in a statement. "MTV is known for exactly this type of conduct. MTV and CBS are both owned by Viacom. Whether or not CBS executives did or did not know in advance is irrelevant; Viacom executives had the duty to know."

-- Tobi Elkin and Joe Mandese contributed to this story.