Late Friday afternoon, the U.S. Supreme Court granted a stay of the Fourth Circuit’s decision setting aside the FCC Media Bureau’s guidance on entitlement to the lowest unit charge (“LUC”) for certain political ads placed on broadcast TV and radio. See our prior post about this issue here. Notably, the 60-day political window for the November midterms begins today, so broadcasters’ obligation to afford qualifying buys the LUC is now in effect.
As a result of today’s decision, the FCC Media Bureau’s guidance is back in effect. That guidance found that two types of broadcast political ads were entitled to the LUC: ads paid for as “party coordinated expenditures” (meaning ads paid for by a party in coordination with a federal candidate), and ads placed by joint fundraising committees involving a federal candidate.
Justice Jackson dissented, stating that she would deny the stay because, in her view, the applicants are not likely to succeed on the merits of their argument that the Fourth Circuit lacked statutory jurisdiction.
The Supreme Court reasoned that the Media Bureau’s Public Notice likely was not a “final” order reviewable by the Fourth Circuit (or other courts). It also found that the petitioning Republican party committees would suffer irreparable injury in the absence of a stay. The Court did not express any view at this time about the underlying merits of the FCC Media Bureau’s LUC guidance.
The stay is intended to afford the party committees and the FCC the opportunity to seek review of the Fourth Circuit’s decision on the merits by filing a petition for writ of certiorari, as they have indicated they plan to do.