Top court sends CBS/Jackson case back for review

WASHINGTON — The Supreme Court on Monday ordered a federal appeals court to re-examine its ruling in favor of CBS Corp. in a legal fight over entertainer Janet Jackson's wardrobe malfunction.

The high court on Monday directed the 3rd U.S. Circuit Court of Appeals in Philadelphia to consider reinstating the $550,000 fine that the Federal Communications Commission imposed on CBS over Jackson's breast-baring performance at the 2004 Super Bowl.

The order follows the high court ruling last week that narrowly upheld the FCC's policy threatening fines against even one-time uses of curse words on live television.

In a statement, CBS said the Supreme Court's decision was not a surprise given last week's ruling and expressed confidence the court will again find the incident was not and could not have been anticipated by the network.

Last year, the appeals court threw out the fine against CBS, saying the FCC strayed from its long-held approach of applying identical standards to words and images when reviewing complaints of indecency.

The appellate court said the incident lasted nine-sixteenths of one second and should have been regarded as "fleeting." The FCC previously deviated from its nearly 30-year practice of fining indecent broadcast programming only when it was so "pervasive as to amount to 'shock treatment' for the audience," the court said.

The FCC appealed to the Supreme Court. The case had been put off while the justices dealt with a challenge led by Fox Television against the FCC's policy on fleeting expletives.

The case is FCC v. CBS Corp., 08-653.