Appeals Court Gives FCC 48 Hours To Act On Political Ad Rates.

With Election Day weeks away, the legal battle over broadcasters’ lowest political advertising rates is complicating further. A federal appeals court has given the FCC just two days to act on a challenge to its political advertising policy, potentially setting up another round of litigation that could change which political advertisers qualify for discounted rates during the final weeks of the campaign.

In a sharply worded 2-1 ruling, the Fourth Circuit Court of Appeals ordered the FCC to decide by noon Friday (Oct. 9), whether to uphold its policy extending lowest unit rates to qualifying party-coordinated advertising and joint fundraising committees.

The decision marks another victory for four Democratic candidates who have been fighting the policy since April. But it doesn’t immediately change the rates broadcasters must charge. The Supreme Court’s stay of an earlier appeals court ruling remains in effect, leaving the FCC’s expanded policy in place for now. What the new ruling does is force the FCC to take a position that could allow the dispute to return to court before the Nov. 3 election.

The appeals court majority accuses the Commission of deliberately delaying a decision to prevent judicial review until after the election. “Its gamesmanship must end,” Judges Robert King and James Wynn write in the ruling released Wednesday. They also accuse the FCC of attempting to evade judicial oversight.

“The FCC’s actions are not only unfortunate — but also an assault on our Constitution’s separation of powers,” they write. “Put simply, the FCC has thumbed its nose at Congress’s statutory commands and the settled principle of judicial review.”

But Judge J. Harvie Wilkinson sharply disagrees, accusing the majority of a “direct affront” on the Supreme Court’s earlier intervention and creating additional uncertainty for broadcasters and political advertisers. He notes the appeals court already caused broadcasters to begin rescinding discounts for political committees, only to have the Supreme Court’s stay potentially send them back to their previous arrangements. Another change could force stations to adjust their contracts and pricing yet again.

“This is chaotic with a capital C,” Wilkinson writes. He also argues the FCC has been attempting to address the dispute through its comment proceedings and shouldn’t be penalized for seeking public input.

How Fight Reached This Point

The dispute began in March, when the Media Bureau issued guidance saying broadcasters must extend lowest unit rates to candidate-party coordinated advertising and joint fundraising committees. Four Democratics challenged the Bureau’s interpretation, arguing that Congress reserved those discounted rates for candidates rather than political parties and other committees.

The Fourth Circuit agreed in August, setting aside the guidance. But the Supreme Court intervened, staying that decision concluding the appeals court likely lacked jurisdiction to consider the challenge before the full FCC had ruled on the candidates’ Application for Review.

That procedural issue became the basis for the candidates’ next legal move. They asked the Fourth Circuit to compel the FCC to issue a final decision, which would clear the way for another judicial challenge. With the agency still not having issued a decision, the majority concluded Wednesday that further delay was unacceptable.

The ruling comes just as the FCC is seeking public comment (MB Docket No. 26-253) on a separate challenge from the Television Bureau of Advertising, which is also seeking to overturn the expanded political advertising policy. In addition to arguing lowest unit rates should be limited to candidates, TVB raises larger First Amendment objections to the requirement that broadcasters provide discounts.

The Media Bureau opened a comment period on TVB’s effort to reverse the discount decision, with comments due Oct. 19. But the Fourth Circuit majority is unwilling to wait. The judges noted that the FCC received the Democratic candidates’ application more than five months earlier and Chairman Brendan Carr circulated a proposed order addressing it in August.

What Happens Next

The immediate question is what the FCC will do before Friday’s noon deadline. The Commission could uphold the Media Bureau’s interpretation, reverse it or otherwise dispose of the candidates’ Application for Review. The court’s order requires a decision — but doesn’t dictate the outcome.

For broadcasters, the outcome could determine which political advertisers can demand a station’s lowest rates during one of the industry’s most important political advertising periods. For now, the FCC’s existing guidance remains in effect. That means stations must continue providing lowest unit rates to qualifying candidate-party coordinated advertising and authorized committees engaged in joint fundraising activity.