The US Supreme Court is now deliberating over whether the Federal Comm. Commission violated the pertinent statute when it fined broadcasters for the use of "fleeting expletives," especially in the contxt of awards shows, which by tradition are live broadcasts.
In the midst of this deliberation, the FCC last week threw visual imagery into the mix, asking that the high court review an appellate court’s decision to revoke its fine in connection with the "wardrobe malfunction" that exposed one of Janet Jackson's nipples during the 2004 Super Bowl halftime show.
It was specifically the Third Circuit that threw out the $550,000 fine against CBS for airing Janet's breast ("Ms Jackson if you're nasty").
The Third Circuit said that the fine was based on an “arbitrary and capricious” change in policy. This was the same reasoning employed by the Secod Circuit in the Fox case over prohibited verbiage.
Accordingly, the FCC wants the issue of fleetingness -- for words and imagery –- disposed of by SCOTUS in one shot.
I think it is safe to presume that the FCC is making this argumnent because it has judged from the oral arguments in the Fox case that it has the votes at the SCOTUS level to re-assert its authority against the interference of these unruly appeals court judges.
I certainly hope that they are wrong in that judgment, and erroneous vote counting on the basis of oral arguments does occur.
I'll be hoping for the right decision, though bracing for the wrong, in the months to come, whether the two cases are combined or not.
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