Democrats Challenge FCC’s Expanded Lowest Unit Rate Policy.

The Democratic candidates challenging the expanded lowest unit rate guidance are telling a federal appeals court that the FCC’s reliance on former Ohio Sen. Sherrod Brown’s 2024 campaign only proves broadcasters have long misapplied the law — not that the agency’s new guidance is legal.

In a reply brief filed with the Fourth Circuit Court of Appeals, the candidates respond to the FCC’s recent assertion that the March guidance merely reflects longstanding industry practice. The Commission also pointed to public political file records indicating that Brown’s campaign received lowest unit rates for coordinated advertisements paid for by the Democratic Senatorial Campaign Committee when he unsuccessfully ran for re-election two years ago.

Brown — joined by Georgia Senate candidate Jon Ossoff, North Carolina Senate candidate Roy Cooper and Michigan congressional candidate Kristen McDonald Rivet — aren’t disputing the description of earlier campaign activity. Instead, they argue the agency’s reliance on past practice misses the legal question before the court.

The brief also escalates the candidates’ warnings about the practical impact of the FCC’s March public notice followed by the Supreme Court’s recent decision eliminating federal limits on coordinated party spending. The 6-3 decision issued last month is expected to shift more political ad dollars to campaign committees while expanding access to lowest unit rates for radio and TV ad purchases.

The candidates argue the two developments together would allow national party committees to spend "hundreds of millions of dollars" purchasing advertising "at the candidate rate," warning that opponents have already promised to use the combination of the Supreme Court's ruling and the FCC's guidance to "obliterate" Democrats in the November election. They say that makes it critical for the Fourth Circuit to rule before the Sept. 4 opening of the general election's lowest unit charge window.

The Democrats’ filing also answers the FCC's argument that the politicians don’t have standing to change the rate policy. The Commission has contended the Democrats actually benefit from the guidance because it allows campaigns and allied committees to receive the same discounted advertising rates regardless of party affiliation.

However, the Democrats counter that recent Supreme Court precedent recognizes candidates have "a concrete and particularized interest” in the rules that govern their campaigns. They also argue the FCC's guidance unlawfully dilutes what Congress intended to be candidates' exclusive entitlement to lowest unit charge while increasing competition for both discounted advertising rates and limited broadcast inventory.

The Democrats also continue to challenge the FCC's attempt to have the case thrown out. The FCC says the case is centered on a Media Bureau public notice rather than a final order issued by the Commission and can’t yet be challenged in court. But the Democrats argue that because Media Bureau actions have "the same force and effect" as Commission actions, the March guidance is already subject to judicial review.

In another new argument, the candidates seek to undermine the FCC's claim that the guidance merely reflects longstanding broadcaster practice by pointing to positions taken by broadcast industry groups themselves. They cite filings by TVB and a memorandum from the National Association of Broadcasters arguing that lowest unit charge eligibility should remain limited to candidates. According to the reply, those filings demonstrate broadcasters recognized the March guidance as a significant expansion of existing policy, particularly after coordinated party spending caps were struck down.

“The TVB petition and the National Association of Broadcasters memorandum show that, now that broadcasters face unlimited party coordinated spending, they would be prepared to contest such advertisements’ eligibility for lowest unit charge were it not for the LUC Guidance demanding that they offer it,” the Democrats suggest.

The Fourth Circuit has scheduled oral arguments for Aug. 7 under an expedited schedule designed to allow the court to rule before broadcasters enter the lowest unit charge window on Sept. 4 ahead of the November general election.