In mid-September, the FCC announced it will review Janet Jackson’s “wardrobe malfunction” during Super Bowl XXXVIII in 2004, in which the singer’s breast was briefly visible during a halftime show. After years of litigation before the Commission and in the federal courts, the U.S. Supreme Court remanded to the U.S. Court of Appeals for the Third Circuit a ruling that vacated the FCC’s $550,000 fine against CBS stations that aired the game. The Commission wants to determine whether CBS’s violation of the indecency laws was willful.

The remand stems from the high court’s ruling in another case, FCC v. Fox Television Stations,in which the U.S. Circuit Court of Appeals for the Second Circuit foun that the FCC has the authority to sanction broadcasters for “fleeting” expletives on the air. (The court declined to address whether such an enforcement policy comports with broadcasters’ First Amendment rights.) The FCC prevailed in Fox because the Supreme Court found that the Commission’s new, more stringent indecency enforcement policy had been adequately explained and justified in prior Commission actions. Based on this precedent, the Supreme Court concluded that the decision to fine CBS for a “fleeting” glimpse of nudity during a primetime broadcast was not an arbitrary and capricious action, as CBS had argued.

On September 15, the Commission filed a request with the U.S. Circuit Court of Appeals for the Third Circuit seeking permission to consider whether CBS acted recklessly when it aired Super Bowl XXXVIII live, without using a video delay that could have permitted the network to censor or blur the footage of Jackson’s breast. Because CBS used a time delay for the 2004 Grammy Award a week after the Super Bowl, the network could not argue that it lacked the technical capability to use delays to avoid broadcast of indecent content.