Democrats Ask Court To Force FCC Action In Political Ad Rate Battle.

The fight over which political advertisers qualify for radio and television stations’ lowest unit ad rate is already back before a federal appeals court, just days after the Supreme Court weighed in with a ruling that impacts who broadcasters must give the discounted rates to.

Four Democratic candidates are taking a new route in their challenge to the FCC’s expanded lowest unit rate policy, asking the Fourth Circuit to force the Commission to issue a final decision that could clear the way for another challenge before Election Day. The latest maneuver follows the Supreme Court’s decision staying a Fourth Circuit ruling that struck down the FCC guidance extending candidate rates to certain political party coordinated expenditures and joint fundraising committee advertising.

How We Got Here

The Supreme Court didn’t decide whether the FCC’s interpretation of the lowest unit charge law is correct in the majority’s four-page decision. Instead, it concluded the Fourth Circuit likely lacked statutory jurisdiction because candidates Sherrod Brown, Jon Ossoff, Roy Cooper and Kristen McDonald Rivet sought judicial review while their Application for Review remained pending before the full Commission. The Supreme Court said the candidates went to court too soon because the full FCC had not yet ruled on their challenge.

The four Democrats are now trying to fix that problem by forcing the FCC to make a decision. They are now asking the Fourth Circuit to force the FCC to rule on their challenge, which would clear the way for them to return to court and again challenge the Media Bureau guidance.

Time remains central to their argument. The 60-day lowest unit charge window for the Nov. 3 general election began Sept. 4, and the candidates say they are already suffering the competitive harm they sought to prevent in their original case.

They want the FCC to move quickly, asking the court to require an agency response by today (Sept. 15) and a decision from the Commission by Friday (Sept. 18). Although the lowest unit rate window is already open, the Democrats say there is still time for a court ruling to make a difference because political advertising typically increases during the final weeks before Election Day. In a 2-1 order, the Fourth Circuit has agreed to speed things up.

Partisan Divide

The National Republican Congressional Committee and National Republican Senatorial Committee are also back in the case. They asked to participate in the new proceeding, accusing the Democrats of seeking a “second bite at the apple” after the Supreme Court put the earlier Fourth Circuit ruling on hold. The Republican groups argue the Supreme Court has provided stability for the current election season and that forcing the FCC to act now could quickly send the same rate dispute back into court.

But the Democrats say this new case is different. For now, they aren’t asking the Fourth Circuit to decide again who qualifies for lowest unit rates. They simply want the court to force the FCC to finally rule on their challenge.

They also point out that the FCC has already indicated where it stands. The Commission has defended the Media Bureau policy and FCC Chair Brendan Carr previously circulated a proposed order that would dismiss the Democrats’ challenge. The Democrats argue there is therefore little reason for the agency to continue delaying a final decision.

But NRCC and NRSC counter that forcing an FCC decision could simply set off another fast-moving court battle over political ad rates during the final weeks of the campaign.

No Rate Changes For Now

For broadcasters, none of this changes the rules today. The Supreme Court’s Sept. 4 stay remains in place, meaning the Fourth Circuit ruling that struck down the FCC policy remains on hold. In practical terms, it requires radio and TV broadcasters to sell discounted political ads to political party committees and joint fundraising groups.