Last week, we wrote about the appeal pending in the 4th Circuit Court of Appeals reviewing the Public Notice issued by the FCC’s Media Bureau which “reminded” broadcasters that they had to extend Lowest Unit Charges to political advertising not only from candidates but also to advertising from joint fundraising committees and political parties whose advertising was authorized by a federal candidate. An appeal was filed by a group of Democratic candidates who argued that the purported “reminder” was in fact new law which, these candidates claim was not justified by governing laws. In our last article, we suggested that broadcasters be on alert, as a Court decision on the Democrats appeal could come quickly. It did! On Tuesday, the Court issued its ruling and, in a 2 to 1 decision, determined that the Public Notice did not correctly interpret the Communications Act and that its extension of LUC to these non-candidate groups was “for naught.”
The Republican Congressional Campaign Committee and the Republican Senatorial Campaign Committee almost immediately filed an emergency motion for stay of the Court’s decision, but on August 27 the Court denied the motion and issued the Court’s mandate, meaning that the FCC Public Notice no longer has any effect. Thus, barring a stay of the 4th Circuit’s decision by the Supreme Court (where the Republican parties have said that they will next go for relief from the 4th Circuit decision), it appears that, for the upcoming general election, stations will not be bound by the Public Notice’s extension of LUC to parties and joint fundraising committees but could instead limit those rates to candidates and their own principal campaign committees.
In reaching this decision, the majority opinion had to first overcome the FCC’s procedural arguments that the Public Notice could not be reviewed by the Court until the full Commission had reviewed the decision of its Media Bureau. The Court disposed of this contention by finding that the Public Notice was fully binding on broadcasters and that it imposed an immediate new legal burden on those broadcasters – and as the Commissioners did not seem poised to address issues in a way that would relieve broadcasters of this new burden (or even substantively address the concerns raised about the Public Notice) before the imminent start on September 4 of the LUC window for the November general election, the Court could review the Notice now.
While, as we mentioned in a previous article about this case, most precedent has required a decision of the full Commission before a court can review any action taken by the Commission or its staff, the Court here seemed to create a narrow path to reviewing staff decisions where the Bureau decision creates a substantive new law with wide applicability and an imminent deadline, and where there would be a substantial impact from that new law. It appears that the Court went out of its way to limit the reach of this decision so that not every FCC staff decision (which daily includes scores of routine actions approving technical and ownership changes) can immediately be appealed to the courts.
On substance, the majority decision looked at the language of the statute to find that the statute only extends LUC to candidates. It notes that all mentions of “authorized committees” deal not with who was entitled to the low rates, but instead to questions of what candidates had to do to preserve their qualification for those rates. The Court also found that neither political parties nor joint fundraising committees acted on behalf of the candidates – but instead, even when their actions were coordinated with and “authorized” by a candidate, these groups were still acting on their own behalf. Just because they were authorized did not make them the stand-in for the candidate authorized to receive LUC under the Communications Act.
The one dissenting judge contended that the Court should have accepted the FCC’s procedural argument. He also came up with a constitutional argument never raised in any brief or by any party in the case – seemingly suggesting that there might be a First Amendment issue in discriminating between candidates who receive LUC and parties and joint fundraising committees that did not. The judges in the majority summarily rejected that reasoning finding that such a constitutional rewriting of the statute could not be justified when its wording was clear.
This decision appears to be a resounding rejection of the position advanced in the Public Notice – and an acceptance of the arguments made by the Democratic candidates who filed the appeal (and also those advanced by TVB whose petition for reconsideration of the Public Notice was rejected recently by the Media Bureau on procedural grounds – see our note here). Unless the Supreme Court intervenes quickly, it appears that broadcasters will continue to be free from any obligation to give parties and joint fundraising committees LUC. But this case has been unusual, from the initial issuance of the Public Notice that purported to just “remind” broadcasters of their existing obligations which many saw as actually imposing new obligations, to the swift decision of the 4th Circuit reviewing a decision that many thought was not yet ripe for review, to a swift rejection of the request for a stay. So, we all need to be watching for what comes next in the middle of what could be a tumultuous political season.