NEW YORK — In a 78-page letter sent to the Federal Communications Commission Nov. 5, CBS calls on the Commission to cancel its proposed $550,000 indecency fine against the TV network for the Super Bowl halftime show.
“No one at the network knew, or had reason to suspect, that the halftime show would end with a glimpse of nudity,” the letter reads, referring to Janet Jackson’s infamous “wardrobe malfunction.” However, the Notice of Apparent Liability (NAL), issued to CBS in September, “is based on the premise that Viacom ‘planned’ and ‘touted’ what it did not know would happen,” CBS says.
In opposing the fine, the company argues that nothing in the record supports an indecency finding and claims the test for indecency was not met. CBS also contends that the proposed forfeiture violates the Communications Act and the First Amendment.
“Not only does the NAL violate existing First Amendment doctrine,” the filing states, “it also calls into question the continuing validity of the entire FCC indecency regime.”
Noting that the power to regulate broadcast indecency is a “limited constitutional exception to a general rule,” CBS writes that “none of the technological assumptions upon which the FCC’s narrow indecency policies are predicated remain valid in 2004. In today’s media-rich environment, it is implausible to justify broadcast indecency regulations on the ‘uniquely pervasive presence’ of broadcasting, given the rise of other delivered video media like cable and satellite, of prerecorded videotapes and DVDs, and of the Internet and digital video recorders.”
CBS says the indecency rule’s continuing constitutionality is further weakened by the FCC’s “failure to explain how it determines the contemporary community standards for the broadcast medium.”