Supreme Court Halts Fourth Circuit Ruling On Political Ad Rates.

The U.S. Supreme Court has temporarily put a Fourth Circuit Court of Appeals ruling on hold that had limited broadcasters’ lowest unit ad rate charge requirements to legally qualified candidates. The decision, issued Sept. 4, restores the FCC’s broader interpretation of the political advertising rate provision for now, as the Republican congressional committees pursue further Supreme Court review.

The Supreme Court granted an emergency application from the National Republican Congressional Committee and National Republican Senatorial Committee, recalling and staying the Fourth Circuit’s mandate pending the filing and disposition of a petition for a writ of certiorari, if timely sought. If the Supreme Court ultimately denies certiorari, the stay will terminate automatically.

The order came as the 60-day lowest unit charge window for the Nov. 3 general election was beginning. Under federal law, broadcasters must offer legally qualified candidates their lowest unit charge during the 60 days preceding a general election. The FCC’s March guidance extended that treatment, under certain circumstances, to political parties engaged in coordinated activity with candidates and joint fundraising committees that include non-candidate members.

The dispute began after four Democratic candidates – Sherrod Brown, Jon Ossoff, Roy Cooper and Kristen McDonald Rivet – challenged the FCC guidance. They argued that the Communications Act limits the lowest unit charge to legally qualified candidates and does not give political parties or joint fundraising committees the same statutory entitlement.

The Fourth Circuit sided with the candidates and ultimately made its ruling effective Aug. 27 after rejecting a request from the NRCC and NRSC to stay the decision. The Republican committees then asked the Supreme Court to intervene, arguing that broadcasters had begun withdrawing the lower rates and that the ruling would affect millions of dollars in planned political advertising.

The Supreme Court did not rule on the underlying merits of whether the FCC’s interpretation of the lowest unit charge is lawful. Instead, the justices focused on the procedural posture of the case. The Court said the Fourth Circuit likely acted before the FCC had completed its review of the Democratic candidates’ challenge to the Media Bureau guidance.

The Supreme Court's order drew a dissent from Justice Ketanji Brown Jackson, who would have denied the stay. The order itself is procedural and leaves the underlying legal dispute unresolved.

FCC Commissioner Anna M. Gomez criticized the decision, arguing that it leaves in place what she described as “unofficial and unlawful FCC guidance” expanding the lowest unit charge to political parties and joint fundraising committees.

“This stay throws the final stretch of the midterms into chaos,” Gomez said in a statement. She noted that the Supreme Court’s action came on the same day the discounted rates took effect, leaving broadcasters and campaigns with little time to adjust to the change.

Gomez also argued that the ruling could increase the amount of political advertising financed through pooled contributions that receives the lowest unit charge. She said broadcasters, many of which are already facing financial pressures, would bear the cost of having to sell additional advertising inventory at discounted rates during the heavy political advertising period.

For broadcasters, the immediate effect is that the FCC’s broader lowest unit charge interpretation is back in effect while the case proceeds. The Supreme Court’s Sept. 4 order does not resolve whether political parties and joint fundraising committees are ultimately entitled to the discounted rates under federal law.