RICHMOND — The United States Court of Appeals for the Fourth Circuit has denied twin emergency motions that would have put a hold on the court’s demand that the FCC rule on whether or not the “lowest unit rate” includes Political Action Committees or is limited to the candidates themselves.
What does this mean? The Carr Commission has until Noon on Friday, October 9, to answer the “LUR” question.
In a 2-1 decision, mirroring previous judgments on ideological lines, the court on Tuesday said no to the pleas of the Federal Communications Commission and the National Republican Congressional and Senatorial Committees.
The emergency motions came after the three-judge panel granted a mandamus petition to the petitioners — Sherrod Brown, the former Ohio Senator and now Democratic nominee for U.S. Senate in Ohio seeking to fill Vice President J.D. Vance’s old seat; Georgia Democratic Senator Jon Ossoff; former North Carolina Governor and Democratic Senate Candidate Roy Cooper III; and Rep. Kristen McDonald Rivet (D-Mich.).
This compels the FCC to clarify its Public Notice pertaining to the Commission’s “lowest unit charge” political advertising rules with hours to go.
That Public Notice is what triggered a political fight in which Democrats are aghast about an illegal rule change while Republicans are content with a “clarification” of existing regulatory policy at the Commission.
Judges King and Wynn voted to defer action on the petition; Judge Wilkinson, appointed by President Reagan in 1984, voted to deny the petition. King was appointed by President Clinton; Wynn was appointed by President Obama.
With the majority opinion, King and Wynn cited one of the nation’s foundational court cases — Marbury v. Madison, from 1803. They wrote, “In the face of the 2026 general election season, the Federal Communications Commission has endeavored to create from whole cloth a new rule entirely outside the purview of judicial review.”
Specifically, Judges King and Wynn believe the Media Bureau extended to political parties favorable campaign advertising rates to which under law only the candidates themselves are statutorily entitled. Noting that the Commission has since delayed agency review “in an obvious effort to preclude judicial review prior to the November 3 election day,” the agency can’t procrastinate any longer.
“If allowed to continue dragging its feet, the FCC will have evaded meaningful judicial review of its newly created rule,” the judges said. “The FCC’s actions are not only unfortunate — but also an assault on our Constitution’s separation of powers. Put simply, the FCC has thumbed its nose at Congress’s statutory commands and the settled principle of judicial review. We have heretofore accorded the FCC a substantial amount of grace, but its gamesmanship must end.”
With less than four weeks before Election Day and early voting already underway in most of the U.S., the mandamus petition could greatly impact political advertising and what the electorate sees and hears from broadcast and cable media.
“Pursuant to the plain statutory language, it has long been understood and accepted — including by the FCC itself — that only candidates, that is real persons, are entitled to the ‘LUC,'” Judges King and Wynn state.
In his dissenting opinion, Judge Wilkinson made it clear that he holds a divergent view of the matter.
“Litigants far and wide will be eager to purchase the majority’s new board game: Make The Supreme Court Say It Twice,” Wilkinson quipped. “Once is enough for me, so I vote to deny the petition for a writ of mandamus.” Why? “The majority has now ignored the Supreme Court’s concern and unraveled its work,” he said. “The timing of the majority’s egregious intrusion into the nation’s electoral process has made no difference to the majority at all. Its decision is ‘chaotic with a capital C.’”
Wilkinson also believes that “the intangible damage of election seasons thrown into limbo” is a direct result of the court actions tied to the Lowest Unit Rate controversy. “The majority’s action will reverberate well beyond the specifics of this case. Why set an example of cavalier disregard for the edicts of a higher court? We are better than that. We would make short work of a district court that approached our own orders the way the majority treats the Supreme Court’s guidance. The judicial system depends upon the demonstration of some modicum of respect by lower courts to higher ones. That respect is all too sadly absent in this action.”
Representing the FCC are Associate General Counsel Jacob Lewis and Deputy Associate GC Sarah Citrin.
