Civil rights groups may be forced to fight alone if they ask the U.S. Supreme Court to uphold minority and gender recruiting rules for broadcasters and cable operators. An appeals court last week refused a new hearing on its earlier decision to rescind those rules.
Although federal regulators at the FCC also have been fighting to preserve the rules, the agency was represented in court by the Department of Justice, which told the court earlier this year that it did not consider the case important enough to appeal to the Supreme Court.
A variety of civil rights groups strongly disagrees with that assessment, but must consider chances that a Supreme Court review would hurt rather than help their chances for keeping some type of minority and gender recruiting program.
As it stands, the lower court decision gives the FCC the freedom to try to craft constitutional rules. Continuing the court battle could result in high court justices rejecting the rules in their entirety. FCC Chairman Michael Powell said last week he wasn't sure whether the FCC would continue to pursue the matter in court, but suggested that if the rules are ultimately struck down, he would try to craft new ones.
In the meantime, the activists are also hoping that the Justice Department will rethink its dismissive view of the case. A strongly worded dissent by three of the lower court's nine members may help change minds at the Justice Department, according to Honig.