The department of justice is asking the US supreme court to review the appeals court decision that knocked down its half-million-dollar fine against CBS for the infamous Janet Jackson "wardrobe malfunction" incident during Super Bowl XXXVIII in 2004.
The government has filed a 243-page petition for a writ of certiorari with the supreme court in the case of federal communications commission and United States of America v CBS Corporation et al.
The department of justice, specifically the solicitor general, made the request on behalf of the FCC.
It hopes to overturn its loss in the third circuit regarding the Super Bowl half-time show incident in which singer Justin Timberlake ripped a chunk of Janet Jackson's bodice off to reveal a metallic pasty.
The appeals court last November declared the agency's $550,000 indecency fine against CBS for the instantly iconic wardrobe malfunction as "arbitrary and capricious" because of the brevity of the moment. The court noted that Jackson's right breast was exposed for nine-sixteenths of a second.
But the FCC has argued that the incident was still offensive, particularly given that it occurred during popular sporting event watched by families.
With that decision, the court "contravened settled principles governing the deference due to an administrative agency's reasonable understanding of its own decisions", according to the DOJ writ.
A spokeswoman for CBS declined to comment.
But in all likelihood, the network saw it coming. In January, the circuit denied a full-court rehearing of the November decision by a three-judge panel.
The FCC has made no mention of the relative offensiveness of a subsequent half-time show that featured Prince, performing in silhouette with what appeared to be a giant guitar-shaped phallus.
