FCC Defends Lowest Unit Rate Guidance With Candidates’ Own Campaign Records.

The Federal Communications Commission is defending its guidance expanding eligibility for lowest unit rate political advertising rates by arguing it reflects decades of industry practice — and by pointing to one of the very candidates challenging the policy as evidence.

In a brief filed with the U.S. Court of Appeals, the FCC urges the Fourth Circuit to dismiss the lawsuit brought by four Democrats running for Congress. The agency continues to argue the case should be thrown out because the challenged Media Bureau public notice is neither a final order nor subject to judicial review at this stage. It also argues that the candidates lack standing. But the filing goes further than earlier motions by directly defending the guidance on the merits.

The March public notice reminded broadcasters that lowest unit rate pricing applies not only to legally qualified federal candidates and their authorized campaign committees, but also to candidate-party coordinated advertisements and authorized joint fundraising committees purchasing airtime for participating candidates. The Democrats contend that interpretation unlawfully expands discounted political advertising rates beyond what Congress intended.

The FCC counters that the guidance did not establish a new policy. Instead, it says the notice merely reflects the longstanding broadcaster practice and prior advice provided by Bureau staff — even providing the court with the NAB Political Broadcasting Handbook as evidence. The FCC argues the candidates are reading the statute too narrowly by focusing on who pays for advertising rather than who uses it or how much of the cost the candidate bears. Its brief also notes that federal law requires candidates to personally certify or approve advertisements before they qualify for lowest unit rate treatment, making the candidate ultimately responsible for the broadcast.

In a made-for-TV drama twist, the FCC also points to Ohio Senate candidate Sherrod Brown’s own campaign activity during the 2024 election cycle. The FCC says public political file records indicate Brown aired coordinated advertisements paid for by the Democratic Senatorial Campaign Committee that “appear to have sought and received the LUC rate.”

The brief argues the Media Bureau “can hardly be faulted for reading the statute the same way that at least one of the petitioners (and his party’s national committee) had understood it until now.” To support the point, the agency cites both FCC political file records and Federal Election Commission coordinated expenditure reports from Brown’s 2024 Senate campaign.

The Commission also raises a new standing argument, contending the candidates haven’t shown the type of concrete injury necessary to pursue the case. The FCC says their only claim of potential injury is that “they will not perform as well as their opponents” on the Republican ticket. The agency argues that theory is insufficient to establish standing under Supreme Court precedent.

Meantime, the Republican congressional campaign committees have filed a separate brief largely echoing the FCC’s legal arguments as they also place greater emphasis on the political implications. The National Republican Congressional Committee and National Republican Senatorial Committee accuse the Democrats of attempting to bypass the Commission’s review process “to manufacture judicial review and force a merits decision in service of their own political interests during election season.”

Like the FCC, the Republican committees argue the public notice didn’t create new law. Instead, they say it simply reminded broadcasters of a longstanding understanding that candidate-party coordinated advertisements and qualifying joint fundraising committee ads are entitled to lowest unit rate treatment. They contend overturning the guidance would disrupt the status quo just as broadcasters prepare for the 2026 election season.

The legal positioning comes ahead of oral arguments set before the Fourth Circuit on Aug. 7. The court has signaled it is open to trying to make a ruling ahead of the Sept. 4 opening of the general election’s lowest unit rate window.