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Feds Want Time to Decide on Super Bowl Reveal Appeal

Government lawyers say they need more time to decide whether to seek Supreme Court review of the indecency fine against CBS stations over the fleeting nudity in the Janet Jackson/Justin Timberlake Super Bowl half-time show.

That's according to Media Access Project, which was served notice of the request. MAP was a party to the lower court challenge. The Third Circuit Court of Appeals last July threw out the fine, concluding the FCC's decision had been arbitrary and capricious and an unjustified departure from prior precedent.

The deadline was Oct. 19 for filing a cert petition with the Supreme Court--essentially a request to hear an appeal of a lower court decision. The Solicitor General said it would need until Nov. 18.

In the request for the extension, which are routinely granted, Solicitor General Gregory Garre said he needed the time for "consultation with the FCC and to assess the legal and practical impact of the...ruling," then more time after that if it decides to seek cert.

But that extension would also allow the government to first gauge the court's reaction to its arguments Nov. 4 in the government's appeal of the Fox profanity decision. In that case, the Second Circuit Court of Appeals found the FCC's decision to find fleeting profanities indecent was also arbitrary and capricious as well.

MAP's Andrew Schwartzman points out that the government is more likely to seek cert if its argument goes well there, though handicapping oral argument is an inexact science at best since judges like to play devil’s advocate and test arguments with tough questions that do not necessarily reveal their leanings.