A federal appeals court has set aside a recent public notice issued by the Federal Communications Commission (FCC) that would have allowed political parties and certain joint fundraising committees to qualify for the lowest unit charge on broadcast campaign advertising.
On Tuesday, the U.S. Court of Appeals for the Fourth Circuit ruled in favor of four Democratic candidates and officeholders who challenged the FCC Media Bureau’s March 30 Public Notice. The notice interpreted federal political broadcasting rules to allow political parties and joint fundraising committees with non-candidate members to receive the lowest unit charge during certain pre-election windows.
The case was brought by Sherrod Brown, the former Ohio senator who is seeking election to the U.S. Senate; Senator Jon Ossoff of Georgia; former North Carolina Governor Roy Cooper, who is also running for U.S. Senate; and Representative Kristen McDonald Rivet of Michigan.
The dispute centered on the “lowest unit charge” requirement, which forces broadcast stations to offer legally qualified candidates the lowest available rate for comparable ad time during the 45 days before a primary election and the 60 days before a general election.
The FCC’s Public Notice said political parties and joint fundraising committees with non-candidate members could qualify for those rates under certain circumstances. The challengers argued that the interpretation contradicted the text of the Communications Act and campaign finance laws.
Judge Robert Bruce King, writing for the Fourth Circuit, agreed.
“As explained herein, we are confident of our jurisdiction to review the Public Notice,” King wrote. “Further, we conclude that the LUC requirement and campaign finance statutes are clear that neither political parties nor joint fundraising committees with non-candidate members can be entitled to the LUC. We therefore grant the Petition for Review, such that we set aside and hold for naught the Public Notice.”
The ruling effectively blocks the Public Notice before its scheduled September 4 effective date.
The FCC defended the notice, arguing that the Fourth Circuit lacked jurisdiction to review it and that the agency’s interpretation was correct. The National Republican Congressional Committee and the National Republican Senatorial Committee intervened in support of the FCC, making similar arguments.
King rejected those claims, writing that the case involved a time-sensitive dispute over who is entitled to discounted broadcast campaign advertising rates before elections.
The decision is widely viewed as a setback for the FCC and for party committees that sought access to candidate-level advertising rates through joint fundraising arrangements. It is also a win for the candidates who challenged the guidance, arguing that extending the lowest unit charge to political parties and joint fundraising committees would distort the statutory benefit Congress reserved for legally qualified candidates.
In a statement early Tuesday morning that was sent to reporters by e-mail before the court’s order, FCC Commissioner Anna Gomez, the agency’s only Democrat, criticized the Public Notice before the ruling, saying it could open the door to “dark money spending” on political advertising.
“In the final stretch of a national election, this FCC is unleashing a flood of coordinated campaign money into broadcast advertising, just as the Supreme Court has cleared the way for unlimited coordinated spending between parties and candidates,” Gomez said. “This unprecedented, last-minute decision gives the biggest political spenders an even bigger advantage over everyone else by expanding the candidate-only discount established by law to joint fundraising and party committees, an advantage that will make it hard for anyone else to catch up before Election Day.”
Gomez said the FCC was directing broadcasters to “slash prices and sell their most valuable inventory during their busiest and most lucrative season, even as this same FCC has spent months arguing broadcasters need economic and regulatory relief to compete with Big Tech and streaming.”
“You cannot claim broadcasters are struggling to survive and then force them into a fire sale on the one thing that could actually help them compete and increase revenue,” Gomez asserted.
Local broadcast TV and radio stations generate a significant amount of their advertising revenue from political campaign and candidate spots during an election year, including in the months leading up to a midterm election. That political advertising revenue helps offset broader declines in ordinary, or “core,” advertising revenue that broadcasters have experienced in recent years as more marketers shift their budgets toward digital platforms like streaming audio and connected TV.
