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Nov 21

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11/21/2008 8:20 AM  RssIcon

Nearly five years after the event, CBS and Janet Jackson maybe thought the wardrobe malfunction kerfluffle was over.

But in its final weeks, the Bush Justice Department and FCC have asked the U.S. Supreme Court to overturn the July appellate court decision in the Nipplegate matter. In that case, the lower court struck down an FCC fine for the now-infamous display of flesh during the Super Bowl halftime performance back on Feb. 1, 2004.

The lower court had thrown out the fine, saying that the FCC had unlawfully penalized the broadcaster for a “fleeting image.” The court also said it could not tell, from the record, if CBS had acted “recklessly” in failing to use video delay technology in the case.

In its petition to the Supreme Court this week, the FCC said that there had never been such a “fleeting image” exemption to indecency enforcement standards.

The FCC also noted that the case, involving the image of the breast, is distinguished from the similar “fleeting indecency” case (for spoken dirty words, not images) currently under review by the high court (in FCC v. Fox). In that case, a lower court said the FCC had unlawfully expanded its scope of obscenity enforcement by punishing broadcasters for fleeting f-bombs during live programming.

But the FCC notes that if the high court decides the FCC was right in enforcing the fleeting indecency standard in the Fox case, then “it would cast down on, if not necessarily reject” the lower court ruling against the FCC in the current CBS case.

In the Fox case, argued last month, the Supreme Court is expected to render a decision by June.

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