The Solicitor General’s office on Tuesday filed this petition for certiorari in FCC v. CBS (08-653) — the case concerning the Super Bowl halftime incident in 2004 involving singers Janet Jackson and Justin Timberlake. In July, a unanimous Third Circuit panel struck down a $550,000 penalty levied against CBS and its affiliates for broadcasting what was later dubbed a “wardrobe malfunction.” The question presented by the petition is:

“Whether the court of appeals erred in holding that the Federal Communications Commission acted arbitrarily and capriciously under the Administrative Procedure Act, 5 U.S.C. 551 et seq., in determining that the most widely viewed broadcast of public nudity in television history fell within the federal prohibitions on broadcast indecency.”

The government says the petition should be held pending the Court’s decision in FCC v. Fox Television Stations (07-582) — the case involving the broadcast of fleeting expletives (as opposed to images) — and, depending on the result, either be remanded for further review or granted for full briefing and oral argument. According to the Court’s online docket (here), a response presently is due December 18, though the respondents may seek an extension. Click here for a prior post by Lyle discussing the Third Circuit’s opinion.

Posted in FCC v. Fox Television Stations, Everything Else