Will wardrobe malfunction be compounded by FCC?

What is the difference between a local manager sitting at a CBS-affiliated station which happens to be owned by CBS, and a local manager sitting at a CBS-affiliated station which happens to be owned by someone else? One difference will be 27.5K dollars, which members of the first group will be paying as punishment for the Janet Jackson Super Bowl wardrobe malfunction, according to widespread reports.

Viacom owns the CBS Television Network and MTV, which were responsible for the ill-fated halftime show. But these two Viacom operating units can't be fined, at least not by the FCC.

But dagnabit, somebody has to pay for this. So the FCC apparently is about to levy a fine which at face value is dripping with two of the court's favorite qualities to hate: arbitrariness and capriciousness.

That is just one argument Viacom will have at its disposal if, as promised, it decides to fight this ruling.

It will also be able to point out that the incident was fleeting and isolated. The alleged miscreants involved have said it was an accident. Would the FCC have to prove intent in a court of law? Even if it could, others have beaten alleged raps for worse, if less infamous incidents.

It can also be argued that Viacom is as much a victim as the rest of those who were offended by the incident. Viacom claims no involvement in its planning, and nobody has turned up a script or other proof that the incident was a deliberate attempt by Viacom to shock, pander and/or titillate its audience.

If someone shows up for work and commits a crime, is the employer liable? Shouldn't the FCC have to prove that Viacom was an accessory to this....oh, wait. The FCC can't even go after Viacom directly - - that's why it's going after selected CBS affiliate stations, those licensed to Viacom.

According to reports, Commissioner Jonathan Adelstein is planning to complain that some 200+ CBS affiliates have been left out of the equation - - at 27.5K a pop, they'd account for over 5.5M in additional revenue for the US Treasury. Although such a move would vastly increase the pool of aggrieved licensees, it would at least add a veneer of consistency to the endeavor.

Regardless, it seems to us that Viacom will have ample legal arrows in its quiver to successfully defend itself in the event it refuses to pay and the FCC convinces the DOJ to take the case to court.

Should be quite a show, if it happens. And remember - - the FCC has already fined Clear Channel 495K for a Howard Stern show way back in April. If it was indecent back then for Clear Channel, who only had him on six stations, why wasn't it indecent for Viacom, who had him on many, many more stations, not to mention numerous other licensees who carry the Shockmeister?

This is another example of regulatory inconsistency which the attorneys at Viacom may well want to bring to the attention to any judges they may encounter in the near future.