CBS has filed a 78-page response with the FCC arguing that the proposed fine violates their First Amendment rights and that they were as shocked as viewers when Justin Timberlake tore off Jackson's top at the finale of their performance. "No one at the network knew, or had reason to suspect, that the halftime show would end with a glimpse of nudity," CBS states in their filing. They contend that the incident was a "stunt concocted by the performers."
The FCC handed down their proposed fine in September, stating that 20 CBS-owned stations should receive fines for broadcasting the partial nudity "in apparent violation of the broadcast indecency standard." The FCC said that CBS and MTV had prior knowledge of the incident and that they "tacitly approved, the sexually provocative nature of the Jackson/Timberlake segment" because CBS and MTV officials had watched the rehearsal. During the performance Timberlake gave a hint at what was to come when he sang, "I gotta have you naked by the end of this song".
The FCC charged that MTV and CBS "extensively promoted this aspect of the broadcast in a manner designed to pander, titillate and shock. Viacom made a calculated and deliberate decision to air the Jackson/Timberlake segment containing material that would shock Super Bowl viewers and to accurately promote it as such." Prior to the performance, MTV.com ran a news story where Jackson's choreographer promised that the performance would include some "shocking moments." The Viacom response is that the "shocking moments" referred to Justin Timberlakes surprise appearance.
In their filing protesting the proposed fines, CBS argues that "as a matter of simple logic, something cannot be 'designed' without advance knowledge." And that "a performance cannot be 'intended to titillate or shock' where the shocking parts of the performance were never intended in the first place. One cannot pander by accident."
If the FCC move forward with their proposed fines, then Viacom can take the matter to federal appeals court and the case may ultimately land before the Supreme Court. .