The Federal Communications Commission (FCC) is urging the U.S. Supreme Court to block a lower court’s order that requires the agency to unwind a rule change that governs how much local radio and television stations may charge campaigns for political advertising inventory.
In an 11-page filing submitted over the weekend, Solicitor General D. John Sauer defended the FCC’s handling of a challenge to a Public Notice issued in March, which allows qualifying political party ads and certain joint fundraising committees to receive discounted rates traditionally reserved for political candidates.
The filing followed an intervention by Chief Justice John Roberts, who temporarily blocked an order from the U.S. Court of Appeals for the Fourth Circuit requiring the FCC to decide the dispute by noon Eastern Time on Friday. Roberts issued the temporary stay Thursday after the federal government sought emergency relief.
The underlying dispute involves four Democratic candidates who argue that the FCC unlawfully expanded the lowest unit charge requirement beyond legally qualified political candidates. The challengers are former Ohio Senator Sherrod Brown, Georgia Senator Jon Ossoff, former North Carolina Governor Roy Cooper and Michigan Representative Kristen McDonald Rivet.
Federal law requires broadcasters to offer legally qualified candidates their lowest available advertising rates during the 45 days preceding primary elections and 60 days preceding general elections. The FCC maintains that its March guidance clarifies existing requirements rather than establishing new rules. But opponents of the rule changes say it has the potential to benefit Republican candidates in key battleground states during the lead-up to the midterm election, and will deprive radio and TV stations of revenue that they need to support their operations.
In August, the Fourth Circuit Court of Appeals struck down the guidance, concluding that political parties and joint fundraising committees with non-candidate members were not entitled to the discounted rates. The Supreme Court subsequently stayed that decision, allowing the FCC’s interpretation to remain in effect while the FCC considered an administrative challenge.
The Democratic candidates then sought to compel the FCC to issue a final decision, which could permit further judicial review before Election Day.
In his latest filing, Sauer argued that the Fourth Circuit exceeded its authority by imposing an accelerated deadline on the agency. He said the candidates failed to establish sufficient grounds for judicial intervention that could overturn an established agency position shortly before the election.
Sauer also disputed arguments that broadcasters were being harmed by the requirement to provide discounted advertising rates. He noted that broadcasters had not sought immediate judicial intervention, despite being the parties required to provide the discounts.
The FCC has separately argued that it needs additional time to consider public comments, including those related to a challenge filed by the Television Bureau of Advertising. The National Republican Congressional Committee and National Republican Senatorial Committee have also opposed an immediate change, warning that revised advertising rates could interfere with existing campaign agreements.
Sauer urged the Supreme Court to grant the government’s request for a stay, arguing that the Fourth Circuit’s directive could create additional uncertainty for broadcasters and political advertisers.
