The Federal Communications Commission's battle to collect fines from broadcast network CBS over Janet Jackson's infamous "wardrobe malfunction" could be heading to the U.S. Supreme Court.
The FCC last week filed a petition for review with the nation's high court, asking to overturn the 3rd Circuit Court of Appeal's July decision that the commission and chairman Kevin Martin "acted arbitrarily and capriciously" in fining CBS stations $550,000 for airing a brief shot of Jackson's right breast during the 2004 Super Bowl halftime show.
The question presented by the FCC is whether the court of appeals erred in its ruling "in determining that the most widely viewed broadcast of public nudity in television history fell within the federal prohibitions on broadcast indecency."
Jackson's breast flashed for nine-sixteenths of a second during her performance with Justin Timberlake.
In response to the petition, CBS said: "We hope the Supreme Court will recognize there are rare instances, particularly during live programming, when it may not be possible to block unfortunate fleeting material, despite best efforts. Doing so would help to restore the policy of restrained indecency enforcement the FCC followed for decades."
The government, however, asked the Supreme Court to postpone its decision on whether to take up the case until after the Court has ruled on a similar case against Fox stations.
That case involves the question of whether the FCC can fine broadcasters for failing to "bleep" out obscenities. The case centers on expletives used by Cher and Nicole Richie at separate awards shows. Oral arguments in the case already have been made, and a decision by the Supreme Court is expected in the spring.