Viacom battles Super Bowl fine
Viacom has filed a response to the FCC's notice of apparent liability (NAL) concerning the infamous Super Bowl wardrobe malfunction. It uses a total of 94 pages to dispute the FCC's finding, saying that the FCC, in the first place, failed to make its case in the present instance and that in the final analysis, the FCC's indecency rules are unconstitutionally vague.
The response was issued on behalf of Viacom's CBS Broadcasting Inc. by attorneys Robert Corn-Revere, Ronald G. London and Amber L. Husbands of Davis Wright Tremaine LLP.
They begin by admitting the instant notoriety garnered by the incident. They said it was not the first nor the worst such incident, "But it captured the imagination of pundits and policymakers to become the leading symbol for the sea change in the FCC's indecency enforcement efforts."
Nonetheless, exhaustive investigation showed beyond doubt that no employee of any Viacom unit had any prior knowledge that the incident would take place, nor was it used thereafter as a publicity tool.
The FCC justification for the 550K fine levied on Viacom is called a "...tortured conclusion." As an example, they argue that the 9/16-of-a-second incident was not "repeated," as the FCC charged. Nothing in the rest of the performance comes close to the FCC definition of indecency. Viacom said it even had a five-second delay in place for audio content, which unfortunately did not prevent airing of a long-range camera shot.
They argue that the test for indecency was not met. "The brief flash of partial nudity that closed the halftime show was neither explicit nor graphic, did not 'dwell on' or 'repeat at length' sexual organs or activities, and was not used to titillate or shock. The NAL made no attempt to explain how a split-second exposure could simultaneously be 'brief' and 'repeated at length.'"
Viacom also disputes that the incident was outside of community standards. Sure, it said, single-issue advocacy groups flooded the FCC with complaints, but other general studies found that 80% thought the FCC investigation of the matter to be a waste of taxpayer money, and only 17% of parents were highly concerned about the incident.
Viacom argues that the rules are unconstitutional, period. "The absence of clear guidelines impermissibly chills speech and gives the government far too much discretion to curb disfavored expression. Although the Commission generally notes that courts have rejected vagueness challenges in the past, the recent expansion of its indecency definition has rendered the standard all but incomprehensible. That, coupled with the fact that the agency has exhibited a chronic inability to interpret its own rules, strongly suggest that a reviewing court today would hold that the rules are void for vagueness."
RBR observation:
Look for this to fall on deaf ears at the FCC. Viacom is laying the groundwork for a battle in the courts.
Are you reading this from a forwarded email?
