On September 4, as we noted in our weekly update of regulatory activity of importance to broadcasters, the Supreme Court seemingly decided that Lowest Unit Rates for this year’s elections would be governed by the Media Bureau’s March Public Notice – the Public Notice announcing that ads from political parties and joint fundraising committees, when approved by a federal candidate, would get those rates. The Supreme Court stayed a decision of the 4^th Circuit Court of Appeals that had found that ads from these groups did not get LUR, interpreting the law to say that those rates only applied to candidates themselves, not to other groups even if authorized by the candidate (see our article here about the 4^th Circuit decision).  As the Supreme Court decision was released on September 4, the first day of the LUR period for the November elections, many assumed that we heard the end of this dispute until the Supreme Court gets around to resolving the substantive issues, a decision unlikely to occur until sometime next year.  But we were wrong, as there was a new flurry of activity this past week. Let’s look at the Supreme Court’s decision and the activity it triggered last week. 

The Supreme Court’s decision never addressed the substance of the issue of whether ads from political parties and joint fundraising committees, when authorized by federal candidates, should get LUC.  Instead, the decision stayed the 4^th Circuit decision because the 4^th Circuit had ruled on the issue before the full Commission had the opportunity to address challenges to the Media Bureau decision.  As other courts have held that the Commission must first rule on a Bureau decision before a judicial appeal can be brought, the Supreme Court found that the 4^th Circuit decision departed from the reasoning of those of other courts.  That procedural conflict as to whether the controversy was ripe for court review had to first be resolved before the substance of the matter could be addressed.  The Supreme Court decision thus stayed the effectiveness of the 4^th Circuit decision until the Supreme Court can resolve this conflict.  That resolution would determine whether the 4^th Circuit had the power to review the substantive issues about LUC without the Commission having first ruled on challenges to the Media Bureau’s Public Notice.