Yesterday the Federal Communications Commission asked the Supreme Court to review an appeals court decision overturning the $550,000 fine that the agency imposed on CBS after Janet Jackson's notorious "wardrobe malfunction" during the 2004 Super Bowl halftime show. In 2008 the U.S. Court of Appeals for the 2nd Circuit deemed the fine "arbitrary and capricious," in violation of the Administrative Procedure Act (APA), because punishing the network for an unplanned (by CBS) glimpse of nipple during a live broadcast represented an unexplained departure from longstanding FCC policy. The following year, the Supreme Court overturned a similar 2nd Circuit decision that said punishing Fox for "fleeting expletives" violated the APA, and it instructed the appeals court to reconsider the CBS case in light of that ruling. Last November a three-judge panel of the 2nd Circuit reaffirmed the nip slip decision, and in January the full court declined to rehear the case. Now the FCC wants the Supreme Court to say the 2nd Circuit erroneously accepted the statutory argument against the CBS fine.
Meanwhile, however, the Fox case has come back to the Court, this time as a constitutional challenge to the FCC's overall ban on broadcast "indecency," which was the justification for both fines. The Court heard oral argument in that case last January, and it is expected to rule within the next two months. If it decides that the FCC's indecency regulations violate the First Amendment (a distinct possibility), the wrangling over the APA will be irrelevant. Hence Solicitor General Donald Verrilli is asking the Court to take up FCC v. CBS after it decides FCC v. Fox:
The court's decision in Fox II may shed light on the proper resolution of this case. This petition therefore should be held for Fox II and then disposed of as appropriate in light of the court's decision.
If the Court rules as it should in FCC v. Fox, FCC v. CBS will be moot.