WASHINGTON, D.C. — On Tuesday, the U.S. Court of Appeals for the Fourth Circuit held that federal law reserves the discounted broadcast advertising rate known as the “lowest unit charge” exclusively for federal candidates, rejecting a recent FCC “Public Notice” that extended the discounted rate to political party committees and joint fundraising committees with non-candidate members.
The FCC guidance took on new significance in the wake of the U.S. Supreme Court’s recent decision in NRSC v. FEC, in which the Court, at the urging of the Republican Party, struck down longstanding limits on how much party committees may spend in coordination with their federal candidates. But that decision did not address whether parties can access the federal candidate discount when they engage in coordinated spending.
Today’s decision came in a lawsuit brought by Elias Law Group on behalf of Senator Sherrod Brown, Senator Jon Ossoff, Governor Roy Cooper, and Representative Kristen McDonald Rivet, challenging a March 30 Public Notice issued by the FCC’s Media Bureau. That guidance instructed broadcast stations to charge joint fundraising committees and party committees engaged in coordinated spending lowest unit charge for their advertisements. Under federal law, lowest unit charge for general election spending will become available on September 4, 60 days before election day.
Writing for the court, Judge Robert King held that Section 315(b) of the Communications Act is unambiguous: the lowest unit charge is available only for the use of a broadcast station “by any person who is a legally qualified candidate.” As the opinion put it, for purposes of the statute, “the term ‘candidate’ means ‘candidate.’” The FCC’s guidance, the court held, was “plainly contrary to law and cannot stand.”
The case was argued on August 7 before the Fourth Circuit Court of Appeals.
“Congress created the lowest unit charge for federal candidates, and the Fourth Circuit confirmed today that candidate means candidate, not political party or joint fundraising committee” said Elias Law Group partners Rachel Jacobs and Jacquelyn Lopez. “This ruling is a huge blow to the Republican Party, which was hoping to throw a lifeline to its weak and failing federal campaigns by paying for television advertising at low rates that Congress reserved for federal candidates alone.”
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