The FCC has filed a Petition for a Writ of Certiorari with the Supreme Court in the case of Federal Communications Commission and United States of America v CBS Corporation et al. It hopes to have its loss in the Third Circuit regarding the Janet Jackson Super Bowl wardrobe malfunction overturned.
The FCC said its rationale for finding the incident indecent and for hitting CBS with a $550K fine was sound – it said the display was shocking to the audience and generated an unprecedented number of public complaints.
The FCC said the incident was patently offensive, particularly in the context of a widely watched sporting event that catered to family viewing, among other things, and argued that the brevity of it didn’t matter.
However, the brevity is why the FCC thinks it lost, saying that the lower court erred in finding the incident fleeting, which is one of the reasons it found for CBS.
The FCC also argued it has some leeway in enforcing decency on the airwaves and argues that it did not err in this case.
RBR-TVBR observation: It took three-sixteenths of a second and after more than eight years it is still with us, keeping attorneys in spending money. Stay tuned.