The Third Circuit Court of Appeals has denied rehearing of the decision by a three-judge panel decision overturning the FCC's $550,000 fine of CBS for the Janet Jackson Super Bowl reveal. The vote was 9-3.
The court back in November, on remand from the Supreme Court, reaffirmed its 2008 decision that the FCC's fine of CBS stations in the 2004 Janet Jackson Super Bowl reveal indecency decision was arbitrary and was a policy change for which CBS stations were improperly penalized.
The Third Circuit in that November decision did not rule on the constitutionality of the FCC indecency policy, but the Supreme Court is currently considering that question as regards Fox and ABC indecency findings on appeal from the FCC and Justice of Second Circuit decision that the policy was unconstitutionally vague.
It also did not remand the decision back to the FCC for more fact finding, as the commission had asked it to do.
It will be up to the FCC and Justice whether they want to challenge this decision in the Supreme Court as well.