FCC Gets More Time To Respond Lower Court Order

Chief Justice John Roberts on Thursday paused a federal appeals court order that would have forced the FCC to decide by noon Friday whether broadcasters must extend election-season discounted ad rates to political parties and joint fundraising committees.

The administrative stay came hours after the Justice Department asked the Supreme Court to block the deadline. Responses are due by 5 p.m. Saturday. The pause leaves the commission’s expanded discount policy in place while the justices consider the request.

The 4th U.S. Circuit Court of Appeals issued the order Wednesday on a petition from four Democratic candidates. In a 2-1 ruling, Judges Robert King and James Wynn said the FCC has delayed a decision since April to keep courts from reviewing the policy before the Nov. 3 election. “The FCC’s professed need for further deliberation … rings hollow,” they wrote, adding that the agency’s “gamesmanship must end.” Judge J. Harvie Wilkinson III dissented, arguing that the Supreme Court has already treated the underlying guidance as not yet open to judicial review.

The order would not have changed rates even if it had taken effect. A separate Supreme Court stay of an earlier 4th Circuit ruling remains in force, so stations may continue offering the discount to the broader set of political advertisers. What the appeals court sought was a formal FCC decision that could return the dispute to court in the final weeks of the campaign.

The candidates are Sen. Jon Ossoff of Georgia, former Sen. Sherrod Brown of Ohio, former North Carolina Gov. Roy Cooper, and Kristen McDonald Rivet of Michigan. They argue that federal law reserves the “lowest unit charge” for a candidate’s own campaign use and does not extend it to party-coordinated ads or joint fundraising committees.

Under section 315(b) of the Communications Act, a station’s charge to a legally qualified candidate in the 45 days before a primary or the 60 days before a general election may not exceed the lowest rate it charges other advertisers for the same class and amount of time. On March 30, the FCC’s Media Bureau said the discount also covers party advertisements coordinated with a federal candidate and ads placed by joint fundraising committees that include a candidate. Independent party spending is not covered.

The 4th Circuit set that guidance aside on Aug. 25. The Supreme Court stayed that decision in early September, concluding the appeals court likely lacked jurisdiction until the full commission ruled on the candidates’ application for review. The same divided panel then ordered the commission to issue that ruling by noon Friday. The government calls the 48-hour deadline an abuse of the court’s authority and an intrusion into the election calendar.