Throughout this election season, we’ve been following the battle over lowest unit rates – the requirement that, during the 45 days before a primary and the 60 days before a general election, political candidates be sold advertising time at the lowest rate given to any commercial advertiser for the same class of broadcast advertising time airing during the same program or daypart.  Candidates even get the benefit of volume discounts without having to buy in volume.  During this election season, there have been many legal battles over a Public Notice from the FCC’s Media Bureau that had the effect of extending these lowest unit charges to political parties and joint fundraising committees when those committees’ ads are authorized by a federal candidate.  While a group of Democratic candidates challenged that ruling, these challenges effectively ended for this political cycle when the Supreme Court decided that the FCC Commissioners needed time to review the decision of the Media Bureau before any court could consider the merits of the Public Notice, effectively putting the issue on hold for the foreseeable future – or so we thought. 

The issue of lowest unit rates refuses to die.  The push to get LUC extended to parties and joint fundraising committees when their ads are authorized by a candidate was led by the Republican party. The perception is that Democratic candidates’ own campaign committees raise substantially more money than do the committees of Republican candidates, so those Democratic candidates get a greater advantage from their money that buys advertising spots at LUC, as these candidates can potentially buy more spots at lower rates than Republican non-candidate groups that may be opposing their election.  Not content with their initial victory in defending the extension of LUC to parties and joint fundraising committees (where Republican groups  tend to raise more money) for their authorized ads, the Republican National Committee, along with the Texas Republican Party and four Republican candidates, last week filed suit against the FCC in US District Court in Texas arguing that the FCC’s application of the lowest unit rate rules is unconstitutional, as those rules discriminate between different types of political speakers by forcing stations to give their lowest advertising rates only to candidates, and allowing stations to charge more to parties (and, though not stated in the complaint, other political advertising buyers like PACs).  The RNC argues that it is unconstitutional for the government to favor certain classes of political speakers over others who may be delivering messages on the same issues. 

The relief sought by the RNC is perhaps the most surprising aspect of the lawsuit.  While their initial ask is that the court order that all election-related ads get lowest unit rates, the RNC perhaps recognizes that, given that the statute clearly says that only candidates get that rate, it is unlikely that a court would believe it appropriate to effectively rewrite the statute to extend the rate to non-candidate groups.  Therefore, the RNC advances a request for alternative relief – that LUC be declared unconstitutional so that no one, including candidates, gets LUC.  As we recently wrote, having LUC declared unconstitutional is essentially the same relief sought by TVB, the group that represents television stations in advertising matters.  In their petition for reconsideration of the Media Bureau’s Public Notice, TVB asked that LUC be declared unconstitutional because it is unconstitutional for the government to force broadcasters to sell time to candidates, particularly at what are essentially discount rates.  Thus, it appears that this RNC lawsuit, if allowed to continue, could bring relief to broadcasters burdened by LUC obligations. 

No responses to the RNC lawsuit have yet been filed.  As the lawsuit alleges that Democratic candidates are advantaged by LUC, as those candidates tend to raise more money from direct donations to candidates, we would expect Democratic Party representatives to oppose the relief requested in this lawsuit. It may well be that broadcast interests also seek to participate in the lawsuit to protect their constitutional interests. 

This is a lawsuit to monitor as it plays out.  As with any lawsuit, relief is unlikely to come immediately or without appeals, and it is certainly too late to impact this year’s elections, but it could have a significant impact on broadcasters political advertising obligations, and perhaps even other regulations on broadcasters’ First Amendment rights that have been in place for decades but which have not been given full First Amendment scrutiny in many years.  So, as we say often, stay tuned….