In the midst of the Supreme Court’s deliberation of whether the FCC permissibly fined broadcasters for “fleeting expletives” in FCC v. Fox, the Commission this week requested that the Supreme Court grant review of another appellate court’s decision to revoke its fine for “fleeting images” relating to the 2004 Super Bowl halftime show.
The FCC’s petition for a writ of certiorari asks the Supreme Court to review whether the U.S. Court of Appeals in Philadelphia (3rd Cir.) erred when it threw out the $550,000 fine against CBS for airing Janet Jackson’s partially-exposed breast.
According to the Third Circuit opinion, the fine was based on an “arbitrary and capricious” change in policy – reasoning that is similar to that of the Second Circuit’s appealed opinion in FCC v. Fox. The Supreme Court heard oral arguments in that case, but has not yet ruled on it. The FCC, with the support of the Department of Justice, requested that the Court hold the petition in the Super Bowl case in abeyance until after the conclusion of Fox.