Supreme Court Asked To Step Into Political Ad Rate Fight.

The fight over which political advertisers are entitled to broadcasters’ lowest unit rates has reached the Supreme Court, with Republican campaign committees seeking emergency relief and the FCC and Justice Department backing their effort to restore the agency’s policy before the general election advertising window opens Friday.

The National Republican Congressional Committee (NRCC) and National Republican Senatorial Committee (NRSC) filed an emergency application with the Supreme Court asking it to put a Fourth Circuit ruling that struck down the FCC policy on hold. They are seeking both an immediate administrative stay while the Supreme Court considers their request and a longer stay while they pursue a petition for review of the appeals court decision.

The filing puts the dispute before Chief Justice John Roberts, who handles emergency applications arising from the Fourth Circuit.

At stake is whether political parties making candidate-coordinated expenditures and certain joint fundraising committees are entitled to the same lowest unit rates that broadcasters must provide candidates during the 60 days before a general election.

The Fourth Circuit ruled 2-1 last week that they are not, striking down a March FCC public notice that said those political buys qualify for the discounted rate. The appeals court then doubled down and rejected the Republican request to keep the decision on hold, making the ruling immediately effective.

The NRCC and NRSC have now taken the fight to the Supreme Court, saying broadcasters are already changing how they handle political ads.

“In the midst of election season, a divided Fourth Circuit panel just rewrote longstanding rules about preferential broadcast rates for political ads,” their emergency application says. The groups argue the timing is already having an impact on political advertising. They say they have budgeted “tens of millions of dollars” for advertising purchases based on receiving lowest unit rates, but that since the Fourth Circuit decision, broadcasters are pushing back.

“Because of the Fourth Circuit’s decision, broadcast stations are already rescinding those rates,” the groups say. That pressure could increase Friday, when the statutory 60-day LUC window begins for the Nov. 3 general election.

FCC Backs Stay

The Trump administration has now thrown its weight behind the Republican request. Solicitor General John Sauer has filed with the Court saying the FCC supports the stay. The government also wants an administrative stay while the justices consider the emergency application, arguing that candidates and political parties need an immediate answer about what rates will apply to their broadcast advertising.

The administration says the Fourth Circuit decision threatens to disrupt political advertising plans already underway, agreeing changing rules now could “throw broadcasters, candidates, and campaigns into confusion.”

The FCC also continues to maintain that its public notice didn’t create a new policy but reiterated a longstanding interpretation under which candidate-party coordinated advertising and qualifying joint fundraising committee advertising could receive lowest unit rates.

The Republican committees make the same argument, telling the Supreme Court that coordinated buys and joint fundraising committee ads for candidate use have received discounted rates for years and that broadcasters are continuing to provide those rates in primary election windows.

The Supreme Court application also challenges the Fourth Circuit’s interpretation of the underlying lowest unit rate statute. The appeals court said federal law says they are only for candidates — and that political-party coordinated spending is the party's “use” of a station rather than the candidate's use.

The NRCC and NRSC say that interpretation places too much emphasis on who pays for an ad. They also point to language proving lowest unit rates to “any authorized committee” of a candidate, arguing that can include a joint fundraising committee designated as an authorized committee.

The Democrats who brought the complaint yet weighed in at the Supreme Court. Neither have broadcasters.

But the Republican committees say stations in some states — it didn’t reveal which ones — have already rescinded lowest unit rates. The groups say every day the Fourth Circuit ruling remains effective reduces the amount of broadcast advertising they can purchase.

For now, the Fourth Circuit decision remains in effect. The NRCC and NRSC are asking the Supreme Court to change that before Friday — first through an administrative stay that would provide an immediate pause and then through a stay that could remain in place while they seek full Supreme Court review. That would likely not be until after the election is over.