Following on oral arguments conducted earlier this month in the ongoing Supreme Court case on “fleeting expletives,” the FCC asked the high court this week to review the decision of the Third Circuit Court to overturn a $550,000 fine that the FCC had levied against CBS as a result of singer Janet Jackson’s “wardrobe malfunction” during the 2004 Super Bowl telecast. If the justices agree to the FCC’s request, it would constitute the second major case in a year to be heard by the Supreme Court on the subject of broadcast indecency. Observers say that the FCC’s decision to seek Supreme Court review of the Janet Jackson ruling was influenced, in part, by the reaction of justices to arguments in the “fleeting expletives” case, that concerns profanity uttered by entertainers Cher and Nicole Richie during live music awards broadcasts on the Fox network in 2002 and 2003. The FCC has also asked the Supreme Court to decide on the pending Fox case before it issues its ruling on the Janet Jackson incident. Siding with CBS, the Third Circuit determined that the FCC acted arbitrarily and capriciously in holding CBS stations liable for the splitsecond and inadvertent exposure of Jackson’s chest during the live Super Bowl telecast. The panel thus concluded that the FCC’s decision to assess the $550,000 fine reversed the agency’s previous precedent of not holding incidents of fleeting nudity as indecent. The appeals court also said that the FCC could not hold broadcasters “vicariously liable” for the unforeseen actions of Jackson and singer Justin Timberlake that caused the incident. Petitioning for certiorari, the FCC told the Supreme Court that the Third Circuit failed to give due deference to the FCC’s “legitimate and rational basis” for holding CBS liable for violations of the agency’s broadcast indecency rules. Upon receiving news of the FCC’s petition, a CBS spokesman 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.”