Appeals Court Blocks FCC’s LUC Ruling: Supreme Court to Hear Appeal

As we reported previously, for years the FCC’s lowest unit charge (LUC) rules applied only to a candidate’s authorized campaign committee.  However, earlier this year the FCC issued a Public Notice extending the LUC rules to political parties and joint fundraising committees.  As a result, stations would be required to offer LUC rates to political committees and joint fundraising committees. 

Last week, the US Court of Appeals for the Fourth Circuit blocked the FCC decision.  The court stated

“Simply put, the LUC requirement and pertinent campaign finance statutes are clear that neither political parties nor joint fundraising committees with non-candidate members 29 can be entitled to the LUC.  In asserting otherwise, the Public Notice is plainly contrary to law and cannot stand.”

As a result, stations are only required to offer LUC rates to a candidate or the candidate’s authorized campaign committee.  They do not have to apply LUC rates to joint fundraising committees or political party committees.  Stations that were following the FCC's guidance and giving LUC to advertisers other than the candidate and that candidate's own campaign committee will be allowed to revert to providing LUC to just the candidate and their campaign committee for the upcoming LUC window.

This is extremely important as the LUC period for the General Election begins on September 4^th.

The Republican National Republican Congressional Committee (NRCC) and National Republican Senatorial Committee (NRSC) asked the 4^th Circuit Court of Appeals to “stay” its own decision.  That request was denied last week. 

THE NRCC and NRSC have now filed a petition to “stay” the decision with the U.S. Supreme Court.  This petition is supported by the FCC. We expect Supreme Court Chief Justice John Roberts to decide the issue quickly, as the LUC window opens on September 4^th.  The Chief Justice has asked the candidates challenging the FCC Public Notice to respond to the stay request by noon on September 3^rd.

So, as we go to press, the Supreme Court has not ruled.  Thus, the decision of the Appeals court, which blocked the FCC ruling, remains in effect.  However, this could change in a few days.

This is a very fluid situation.  This issue will remain uncertain until the Supreme Court rules on the petition to “stay” the Appeals Court decision.  If you have any questions, consult your communications counsel.  We will keep you informed.

You can see the court’s decision here.

You can find an excellent analysis by noted communications attorney David Oxenford here.

You can see the NRCC and NRSC’s petition before the U.S. Supreme Court here.