Supreme Court Keeps Political Ad Rate Rules Intact Ahead Of Election.

Broadcasters will not face another court-driven change to political advertising discount rules before Election Day after the Supreme Court blocked an appeals court order that would have forced the Federal Communications Commission to immediately rule on a challenge to its lowest unit rate policy. The decision keeps the agency's existing guidance in place during the final weeks of the campaign, sparing radio and TV stations the prospect of having to adjust political advertising rates and contracts during the final weeks of the campaign.

In an unsigned, five-page opinion issued late Wednesday, the justices sided with the FCC in its battle with four Democratic congressional candidates — Sherrod Brown of Ohio, Jon Ossoff of Georgia, Roy Cooper of North Carolina and Kristen McDonald Rivet of Michigan — who have accused the agency of deliberately delaying action to prevent judicial review before the November election. The Court ruled that a federal appeals court went too far when it ordered the Commission to decide the case within 48 hours.

"The Fourth Circuit's decision to issue an 'extraordinary' writ was inappropriate under the circumstances," the Supreme Court says.

The justices emphasize that while federal law requires the FCC to act on applications for review, Congress didn’t impose a specific timetable. The ruling means the FCC can continue considering the challenge without the immediate deadline imposed by the appeals court. It does not, however, resolve the underlying dispute over political advertising discounts or determine whether the Media Bureau issued guidance saying qualifying party-coordinated advertising and joint fundraising committees are entitled to broadcasters’ lowest unit charge rate is lawful. That issue is likely to be back before the Court in the months to come.

How We Got Here

The case would up in front of the Supreme Court after the Fourth Circuit ordered the FCC on Oct. 7 to issue a final decision on a challenge to the rate policy by Oct. 9. The directive followed months of litigation over whether the Commission could delay ruling on a challenge while the November election approached. But in siding with the FCC, a majority of the justices concludes the appeals court improperly interfered with the agency's decision-making process while the FCC was still considering the matter, including collecting public comments.

"Our system of separation of powers does not allow the judiciary to meddle in 'the workings of a coordinate branch of the government' in this manner," the opinion states.

While the opinion was unsigned, the Court disclosed that Justices Sonia Sotomayor and Ketanji Brown Jackson would have denied the stay. Justice Elena Kagan, the Court's other liberal member, did not publicly register a dissent — but it’s unclear whether she agreed with the majority opinion.

What Ruling Means For Radio

For broadcasters, the immediate practical effect of the Court decision is continuity. The FCC's guidance remains operative, meaning qualifying party-coordinated advertising and certain joint fundraising committee advertising continue to receive lowest unit rates under the agency's current interpretation.

The National Republican Congressional Committees have defended the FCC's guidance and warned that a sudden reversal could disrupt advertising arrangements already negotiated for the election. They argue that changing the rules during the final weeks of a campaign could force political advertisers and stations to revisit pricing and existing advertising contracts.

The Supreme Court's decision avoids that immediate disruption, although it leaves the central legal question unanswered of whether federal law extend broadcasters' lowest unit rate discounts beyond candidates to political parties and joint fundraising committees engaged in qualifying coordinated activity.

The Fourth Circuit previously concluded that the statute limits those protections to candidates, writing in an August decision that “the term ‘candidate’ means ‘candidate” when it comes to lowest unit rates, concluding that makes the FCC directive “unlawful” under federal law. But the Supreme Court stayed that decision last month, finding that the appeals court likely lacked jurisdiction because the full FCC had not yet ruled on the candidates' administrative challenge.