Fourth Circuit Gives FCC Until Oct. 1 In Political Ad Rate Fight.

The Fourth Circuit is giving the Federal Communications Commission more time to resolve its political advertising rate fight, declining to force a decision by Friday but keeping the threat of court intervention alive after Oct. 1.

In a 2-1 order issued Friday, the appeals court said it will defer action on a request from Democratic candidates Sherrod Brown, Jon Ossoff, Roy Cooper and Kristen McDonald Rivet to force the FCC to rule on their challenge to its expanded lowest unit charge policy.

The candidates had asked the court to require a final FCC decision by Sept. 18. Instead, the Fourth Circuit says it will take no action on their request “until at least October 1, 2026.” If the FCC acts during that period and makes the case moot, the court says it will dismiss the petition.

The decision effectively gives the FCC time to complete the public-comment process it opened last week. Comments on the candidates’ Application for Review are due Sept. 25, with replies due Sept. 30.

But the Fourth Circuit also put the FCC on notice that it expects the agency to act. The majority specifically reminded the parties that the Commission “is required to resolve every application it receives.” It also pointed to language in the Communications Act directing the FCC to conduct its business promptly, including a statutory objective of issuing final decisions within three months in original application cases that do not require a hearing.

Judges Robert King and James Wynn voted to defer action. Judge J. Harvie Wilkinson III voted to deny the candidates’ request outright and issued a dissent. Wilkinson says the court should simply deny the petition rather than leave open the possibility of another change in the rules during the election.

“A postponement does nothing but keep matters churning,” Wilkinson writes, focusing on the impact the litigation has already had on broadcasters. He notes that stations began “rescinding favorable rates” for party-coordinated advertising following the Fourth Circuit’s August ruling and presumably returned to their earlier arrangements after the Supreme Court issued its stay.

“By this point, neither parties nor candidates nor broadcasters have any idea how to plan, contractually or otherwise, for the rest of the election season,” Wilkinson writes. “This is chaotic with a capital C.”

How Fight Got Here

The ruling marks the latest turn in a fast-moving fight over 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 challenged that interpretation in April, arguing federal law reserves the guaranteed discount for candidates and their campaigns. The Fourth Circuit agreed with them in August and struck down the Media Bureau guidance.

However, the Supreme Court put that ruling 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 Commission had ruled on their Application for Review. The Supreme Court didn’t decide whether the FCC’s interpretation of the lowest unit charge law was correct.

That prompted the Democrats to return to the Fourth Circuit with a different request. They tried to force the FCC to issue the final decision necessary to clear that procedural hurdle.

The FCC opposed the request, arguing that requiring a decision by Sept. 18 would impose an unprecedented timetable. It also opened the candidates’ challenge to public comment, saying it needs to consider input from broadcasters and other interested parties before issuing a final order.

The Democrats fired back, calling the new comment process a “farce” and accusing the FCC of using it to delay a decision and another round of judicial review. They argued the agency had never previously suggested public comments were necessary during the nearly five months their challenge had been pending.

Friday’s order gives the FCC the additional time it sought, but stops short of ending the Democrats’ case.

What It Means For Radio

For broadcasters, Friday’s ruling produces no immediate change in lowest unit rate requirements. The Supreme Court stay remains in place, leaving the FCC’s expanded guidance in effect while the Commission considers the candidates’ challenge. In practical terms, it continues to require radio and TV broadcasters to sell discounted political ads to political party committees and joint fundraising groups.