FCC Fights Deadline To Settle Political Ad Rate Challenge.

The Federal Communications Commission is urging a federal appeals court not to force it to rule this week on the latest challenge to its political advertising rate policy, arguing the Democrats seeking a decision by Friday are trying to rush the agency while the general election is already underway.

In a filing in federal appeals court late Tuesday, the Commission asked the Fourth Circuit to reject a request from Sherrod Brown, Jon Ossoff, Roy Cooper and Kristen McDonald Rivet that would require the FCC to rule on their challenge to its expanded lowest unit charge policy by Sept. 18.

“We are unaware of any precedent for requiring the FCC to take action in such a compressed time frame,” the agency tells the court.

Instead, the FCC says it intends to hear from broadcasters and other interested parties before making a final decision. The Media Bureau has opened the Democrats’ challenge to public comment (MB Docket No. 26-253), setting Sept. 25 for comments and Sept. 30 for replies.

“The Commission requires the opportunity to consider comments submitted by interested parties before it issues an order addressing the application for review,” the FCC tells the court. That means the FCC doesn’t plan to meet the Sept. 18 timetable the Democrats want unless the court orders it to do so.

How Fight Got Here

At issue is the Media Bureau’s March guidance telling broadcasters that lowest unit rates extend to certain candidate-party coordinated advertising and authorized committees engaged in joint fundraising with federal candidates.

The four Democrats filed an Application for Review in April asking the full Commission to overturn the guidance. When the FCC didn’t act, they went to the Fourth Circuit, which struck down the Media Bureau policy in August.

But the Supreme Court put that decision on hold earlier this month, concluding the Fourth Circuit likely lacked authority to decide the challenge because the candidates went to court before the full FCC had ruled on their Application for Review.

The Democrats then returned to the Fourth Circuit last week with a different request. Rather than asking the court to immediately decide who qualifies for lowest unit rates, they want it to force the FCC to finally rule on their challenge. A Commission decision could clear the way for them to return to court and again challenge the rate guidance.

But the FCC says the roughly five months that have passed since the candidates filed their challenge doesn’t amount to an unreasonable delay. It also pushes back against the candidates’ argument that there is little left for the Commission to do because Chair Brendan Carr circulated a proposed order to his fellow commissioners in August.

The candidates contend the Commission has essentially made its decision and simply needs to release it.

“That is incorrect,” the FCC responds. “No Commission decision is final until the Commission releases a final order.”

The agency says several important developments have occurred since Carr circulated the draft, leading it to solicit comments. Otherwise, the agency says its eventual order could itself be vulnerable to a court challenge for failing to consider important issues.

However, Commissioner Anna Gomez, who has criticized the new policy’s adoption, says things shouldn’t have gotten this far without public input. “This is less like newfound transparency and more like damage control dressed up as due process, and a delay tactic dressed up as diligence,” she says.

The FCC’s other major argument is that forcing an immediate decision could trigger another fast-moving lawsuit and potentially change political advertising rules again during the general election. The FCC says another expedited round of litigation could create “extensive and disruptive confusion” over the rules during the final weeks of the campaign. It also argues the candidates themselves remain able to purchase qualifying broadcast advertising at lowest unit rates, while the policy they are seeking would remove the automatic discounted rate entitlement for party committees.

Broadcaster Impact

For broadcasters, none of Tuesday’s developments immediately changes the lowest unit rate rules. The Supreme Court’s Sept. 4 stay remains in place. In practical terms, it requires radio and TV broadcasters to sell discounted political ads to political party committees and joint fundraising groups.