FCC continues fight for Jackson fine

Case could be headed to U.S. Supreme Court

The FCC's battle to collect fines from CBS over Janet Jackson's infamous "wardrobe malfunction" during the 2004 Super Bowl halftime show could be heading to the U.S. Supreme Court.

Earlier this week, the FCC filed a petition for review with the nation's high court asking to overturn the 3rd Circuit Court of Appeal's July decision that the commission and chair Kevin Martin "acted arbitrarily and capriciously" in fining CBS stations $550,000 for airing Jackson's right breast during the Super Bowl show.

The question presented by the FCC is whether the court of appeals erred in its ruling "in determining that the most widely viewed broadcast of public nudity in television history fell within the federal prohibitions on broadcast indecency."

Jackson's breast flashed for nine-sixteenths of a second during her performance with Justin Timberlake.

In response to the petition, CBS 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. Doing so would help to restore the policy of restrained indecency enforcement the FCC followed for decades."

The government asked the Supreme Court, however, to postpone its decision on whether to take up the case until after it has ruled on a similar case against Fox stations.

That case involves whether the FCC can fine broadcasters for failing to "bleep" out obscenities. The case centers on expletives used by Cher and Nicole Richie at separate awards shows. Oral arguments in the case have taken place and a decision by the Supreme Court is expected in the spring.