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On September 4, 2026 – the first day of the lowest unit charge (LUC) window for the November general election – the U.S. Supreme Court granted an emergency stay of the Fourth Circuit’s order in Brown v. FCC, thereby reinstating the Federal Communications Commission (FCC or Commission) Media Bureau’s March 2026 Public Notice on LUC for political party ads. The Public Notice clarified that authorized committees of legally qualified candidates for federal office and coordinated expenditures between political party committees and legally qualified candidates for federal office are both entitled to LUC.
Background
Under LUC requirements, broadcasters must provide candidates with the lowest advertising prices the station charges in the 45 days before a primary election and the 60 days before a general or special election.
This obligation arises under Section 315(b)(1) of the Communications Act, which states:
“The charges made for the use of any broadcasting station by any person who is a legally qualified candidate for any public office in connection with his campaign for nomination for election, or election, to such office shall not exceed ... during the forty-five days preceding the date of a primary or primary runoff election and during the sixty days preceding the date of a general or special election in which such person is a candidate, the lowest unit charge of the station for the same class and amount of time for the same period.”
On March 30, 2026, the Media Bureau (Bureau) issued a Public Notice “reminding” broadcasters that the LUC requirements apply to “(1) authorized committees, including authorized committees that engage in joint fundraising with legally qualified candidates for federal office, and (2) advertisements that qualify as coordinated expenditures of political parties and legally qualified candidates for federal office.” You can read our summary of the Bureau’s Public Notice here.
Four Democratic congressional candidates filed an application for review in late April, seeking review by the full FCC (the three sitting Commissioners) of the Bureau’s Public Notice. The application for review remains pending. These candidates then filed a petition for review in the U.S. Court of Appeals for the Fourth Circuit.
The National Republican Congressional Committee (NRSC) and the National Republican Senatorial Committee (NRCC and, together with NRSC, Intervenors) intervened in the Fourth Circuit litigation in support of the FCC.
The Fourth Circuit Opinion
On August 25, 2026, the Fourth Circuit issued an opinion in Brown v. FCC, setting aside the Public Notice. In a 2-1 decision, the court held: (1) that it had jurisdiction to review a bureau-level public notice subject to a pending application for review; and (2) that the Communications Act does not extend LUC to political parties or joint fundraising committees with non-candidate members. Judge Robert B. King, a Clinton appointee, authored the opinion. Judge James Andrew Wynn, an Obama appointee, joined the majority opinion and wrote a concurring opinion, while Judge J. Harvie Wilkinson, a Reagan appointee, dissented.
The majority opinion emphasized the time-sensitive nature of the petition, with the LUC window for the November general election opening on September 4, 2026.
The Court’s Jurisdiction to Review a Bureau-Level Public Notice
The first issue addressed by the Fourth Circuit was whether it had jurisdiction to review the Public Notice, which the Bureau issued on delegated authority and was subject to a pending application for review. In contrast to decisions issued by the D.C. Circuit and other circuits, which have found that appellate jurisdiction does not begin until after the FCC has disposed of all applications for review of a bureau-level order, the majority, here, stated that it was “confident” of its jurisdiction to review the Public Notice.
The court’s jurisdictional analysis turned on two factors: first, that the Public Notice constitutes a final order of the FCC, and second, that the Petitioners satisfied their administrative exhaustion requirement merely by “filing” their application for review.
With regard to whether the Public Notice is an “order of the Commission,” the court cited Section 155(c) of the Communications Act, which permits the FCC to delegate its functions and states that an order made under delegation has “the same force and effect” as an order of the Commission. Because the FCC’s rules delegate to the Bureau authority to “[a]dminister and enforce rules and policies regarding political programming and related matters,” the court reasoned that, “from the start, the Public Notice was an order of the Commission.”
As to whether the Public Notice was a “final order,” the court acknowledged that, in the normal course, an order becomes nonfinal when subject to an application for review. But the court expressed concern that this would create a “Catch-22” where an order is final for the purpose of its effectiveness but nonfinal for the purpose of judicial review. To resolve this concern, the court concluded that “the Public Notice remained final pending completion of the review process.”
The majority offered two alternative theories for its jurisdiction. First, it found that the FCC constructively denied the application for review and adopted the Public Notice when it did not take any action on the application for review “[d]espite the time-sensitive nature of these proceedings.” Citing the “unusual circumstances” present here, the court concluded that the FCC constructively denied the application for review, and, therefore, that the Public Notice was final. Second, the court concluded that the Public Notice was final because it adopted a legislative rule that went beyond reminding broadcasters of the LUC requirements and instead imposed new substantive obligations. This aligns with the court’s rationale that it is “illogical and intolerable” for an order to be “final” for the purpose of binding parties unless that order is also “final” for the purpose of allowing parties to seek judicial review.
Whether Party Committees and Coordinated Ads Are Entitled to LUC
On the merits, the Fourth Circuit asserted that the plain text of Section 315 of the Communications Act limits LUC to candidates. The court’s rationale focused primarily on what constitutes a candidate use under Section 315.
First, the court found that there is no statutory justification for extending LUC to authorized committees. In particular, the court held that Section 315 does not permit a candidate to merely authorize someone else to use a broadcast station on the candidate’s behalf; rather, the use must be by the candidate themself. The court cited numerous prior FCC statements it interpreted as reaching the same conclusion. The court also referenced the legislative history of the LUC requirement, including prior failed attempts in Congress to expand entitlement to LUC to party committees.
Second, the court held that Congress did not authorize party committees engaged in coordinated expenditures to receive LUC. The court found that expenditures by party committees on behalf of candidates are the party committee’s use, not the candidate’s use. The court reasoned that because party committees are prohibited under the FEC Act from making expenditures “on behalf of” a candidate unless they are an authorized committee of that candidate, a party committee that supports multiple candidates cannot act on behalf of those candidates such that their use would be imputed to the candidates.
In a footnote, the court addressed a specific scenario where a party pays for a portion of an ad and a candidate pays for the rest, agreeing with the Petitioners that the candidate’s share is entitled to LUC, but the party’s share is not. In contrast, the court held that an ad that includes the appearance of a candidate and is authorized, but not paid for, by the candidate, is more akin to an independent expenditure that would not be entitled to LUC.
Finally, the court found that joint fundraising committees with non-candidate members are merely pass-through entities and not entitled to LUC. Here, the court cited Section 30102(e)(3)(a) of the FEC Act, which permits the designation of a joint fundraising committee as an authorized committee “solely for the purpose of joint fundraising.” The court concluded that this limitation means that any expenditures by the joint fundraising committee are on behalf of the committee itself and not a use by the candidate.
Judge Wynn’s Concurrence
In his concurrence, Judge Wynn accused the FCC of engaging in “jurisdictional gamesmanship,” contending that the Public Notice must become final no later than September 4, when the LUC window opens and the Bureau’s guidance would govern. This, he reasoned, supports the notion that the Commission constructively denied the application for review. Judge Wynn also contended that the practical benefits of waiting for a decision from the FCC are minimal in this case, which turns on a statutory construction question that is exclusively a judicial function under Loper Bright.
Judge Wilkinson’s Dissent
In his 30-page dissent, Judge Wilkinson questioned both the majority’s jurisdictional analysis and its statutory interpretation.
First, Judge Wilkinson accused the majority of undermining Congress’ statutory scheme, which he says requires the sitting members of the Commission to review and refine the work of FCC staff members before that work may be challenged in federal court. He noted that the Communications Act states that the time for filing a petition for review starts from when the FCC provides public notice that it has disposed of an application for review and argued that this strips the court of jurisdiction to hear a petition for review that is prematurely filed. Judge Wilkinson pointed to decisions in three other circuits holding that an action taken on delegated authority does not become final until the Commission has passed on an application for review.
While Judge Wilkinson acknowledged that the Commission can use the exhaustion requirement to delay judicial review, he noted that the Communications Act requires the FCC to act on an application for review. Where the FCC’s delay is unreasonable, he said, parties can seek a writ of mandamus, although he stated that “it is inconceivable for mandamus to be appropriate here after two months of agency inaction.”
In contrast to the majority’s claim that the general election LUC window compels the court to act, Judge Wilkinson contended that the opposite is true: Changing the LUC rules now upends the rules in the middle of an election season.
On the merits, Judge Wilkinson disputed the majority’s construction of the term “use” in the Communications Act, maintaining that it is ambiguous, but at least accommodates, if not favors, the FCC’s position. Judge Wilkinson noted that both candidates and their primary campaign committees are considered eligible for LUC to highlight the statute’s ambiguity.
Finally, Judge Wilkinson dedicated several pages of his dissent to arguing that the court’s interpretation potentially interferes with the First Amendment rights of political parties.
The Supreme Court’s Emergency Stay
After the Fourth Circuit denied a motion for a stay filed by the NRSC and the NRCC, the Intervenors applied to the Supreme Court for an emergency stay and an administrative stay pending a petition for writ of certiorari seeking review of the Fourth Circuit’s decision by the Supreme Court.
The per curiam opinion found that the Fourth Circuit likely lacked jurisdiction to consider the Democratic candidates’ challenge because the candidates’ application for review remained pending before the FCC. The Supreme Court wrote that the Fourth Circuit’s holding to the contrary “splits with every other Circuit to have considered the issue.” Justice Ketanji Brown Jackson, in a brief dissent, expressed her support for the Fourth Circuit’s finding that it had jurisdiction, including because the FCC had constructively denied the application for review.
The petition for writ of certiorari in Brown v. FCC is not due until late November. As a result, the stay will likely remain in effect until after the November election.
What This Means
The Supreme Court’s stay reinstates the effectiveness of the Media Bureau Public Notice. Under the interpretation set forth in that Public Notice, joint fundraising committees and party committee-candidate coordinated ads for legally qualified candidates for federal office are entitled to LUC.
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