NEW YORK – Few media companies have the resources and the will of Viacom Inc. to fight the government over an issue as culturally and politically charged as indecency.

But Viacom, which had $26.5 billion in 2003 revenues, is preparing to battle the Federal Communications Commission’s $550,000 fine for the Super Bowl halftime show in which singer Janet Jackson briefly exposed her breast. The owner of CBS will challenge the FCC on regulatory and constitutional grounds.

Viacom’s filing with the FCC on Friday – which became public Monday – constitutes the opening shot of a case that ultimately could reach the U.S. Supreme Court. Viacom wrote that “no court has ever approved the FCC’s assertion of a national broadcast standard, and the agency has managed to keep the matter from being litigated through enforcement policies that have successfully avoided judicial review.”

Arguing on behalf of the 20 Viacom-owned CBS stations that aired the Super Bowl on Feb. 1, Viacom said the government had gone too far in attempting to draw the parameters of what constitutes “obscene, profane or indecent programming” in contemporary society.

Viacom called the agency’s “aggressive campaign to combat “indecency”‘ a violation of the First Amendment.

“Viacom is taking a hard line here by attacking the constitutional foundations of indecency regulation because they’re afraid that the political ebb and flow leaves them at the mercy of changing enforcement parameters,” said Glenn Manishin, a communications attorney with Kelley Drye & Warren in Washington D.C.

The FCC’s September fine against Viacom was the largest ever imposed for a single violation of federal indecency laws. The FCC’s five members voted unanimously to fine each of Viacom’s CBS stations $27,500 – the maximum – for airing the incident.

The halftime show became a flashpoint in an ongoing indecency debate. CBS was quick to issue a public apology after the “wardrobe malfunction.”

Under FCC regulations, radio and broadcast television stations may not air sexual and scatological content between 6 a.m. and 10 p.m., when children are more likely to be watching.

In a statement regarding the Viacom fine, FCC Chairman Michael Powell said “the U.S. Constitution is generous in its protection of free expression, but it is not a license to thrill.”

In response, Viacom argued that it had no prior knowledge of the incident and should not be held liable. Viewers saw Jackson’s breast for 9/16 of a second in a long-range camera shot. Viacom said that image “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.”

In Friday’s filing, Viacom said an internal investigation of the incident found that it “resulted from a stunt concocted by the performers themselves shortly before the show, and it confirmed that their last-minute scheme was never communicated to any network personnel.”

Viacom’s response fits the company’s longstanding position that regulators should take great care when ruling on First Amendment issues. It already had demonstrated its willingness to contest government orders over indecency by refusing to pay roughly $451,000 in fines issued by the FCC since 2000, mostly for radio shock jock Howard Stern’s morning show.

For critics, the incident underscored the need for the Broadcast Decency Act of 2004, which proposed a tenfold increase in indecency fines. The legislation, sponsored by Sen. Sam Brownback, R-Kansas, failed to pass during the last congressional session but is expected to come up again for consideration.

In its filing, Viacom argued that the FCC should not attempt to regulate “community standards” since they are unknown to the agency and constantly shifting.

Though it stopped short of naming any particular groups, the media giant charged that “a large proportion of the complaints were engineered by single-interest advocacy organizations.”

Lara Mahaney, director of corporate and entertainment affairs for Parents Television Council, said she hoped the FCC would ultimately force Viacom to pay the fine in order to send a message to other broadcasters.

“Even if we give them the benefit of the doubt that they had no warning, they are still responsible for what comes across their airwaves,” Mahaney said.

“This is just another example of Viacom’s unwillingness to follow the law. They never want to pay any indecency fines.”

(c) 2004, Chicago Tribune.

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Distributed by Knight Ridder/Tribune Information Services.

AP-NY-11-09-04 2045EST

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