WASHINGTON—The Television Bureau of Advertising has once again weighed in on a potentially very costly expansion of political ad discounts in a filing with the Federal Communications Commission.
The Sept. 14 filing argues that the Media Bureau improperly expanded who is eligible to receive a “lowest unit charge,” or LUC, for political ads. It also contends those discounts unconstitutionally violate broadcasters’ First Amendment rights.
In March, the Media Bureau issued a public notice with guidance on who is entitled to discounted advertising rates under the “FCC’s lowest unit charge (LUC) requirements” that appeared to expand eligibility for discounted ads. That notice argued that “the LUC requirements are applicable 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.”
The TVB petitioned the Media Bureau to reconsider its ruling, but on Aug. 13 the bureau rejected that petition, arguing the FCC hadn’t actually changed any of its rules.
In late August, though, the 4th U.S. Circuit Court of Appeals overturned that guidance. That ruling sided with four Democratic congressional candidates who had asked the 4th Circuit to limit the groups entitled to discounted political advertising under FCC rules.
The Supreme Court then issued an emergency stay on Sept. 4, reinstating the rules in response to filings by Republican groups.
The FCC political-ad rules are important to broadcasters because expanding eligibility for discounted ad rates could significantly reduce stations’ overall revenue from this year’s hotly contested midterm elections.
In a Sept. 14 filing, the broadcaster-backed TVB argued: “[T]he Commission should grant this application for review, reverse the Bureau’s actions in DA 26-300 and DA 26-851, set aside the Public Notice, and confirm that only a legally qualified candidate and the candidate’s designated principal campaign committee are entitled to the LUC [lowest unit charge for political ads]. In the alternative, the Commission should conduct a proper notice-and-comment rulemaking. The Commission also should determine to no longer enforce its unconstitutional LUC rules in their entirety. Given the exceptional importance of these issues and impending election cycles, TVB urges the Commission to act quickly on this application for review.”
In the filing, the TVB stressed that “under governing law and longstanding precedent, only a candidate’s designated principal campaign committee is entitled to LUC rates, while other types of joint or hybrid committees are not. The Notice thus purports to cement a substantial expansion of the LUC that is contrary to statute, procedurally defective and unconstitutional.”
The group added, “This unlawful expansion exemplifies why the LUC statute and the FCC’s implementing rules violate the First Amendment, and why the Commission should decline to enforce its LUC rules going forward.”
Expanding access to discounted political ad rates, which critics say forces private broadcasters to subsidize political groups, has been backed by Republicans and attacked by Democrats.
Those Democrats, as has been previously reported, include FCC Commissioner Anna Gomez. “Broadcasters are being directed to slash prices and sell their most valuable inventory during their busiest and most lucrative season, even as this same FCC has spent months arguing broadcasters need economic and regulatory relief to compete with Big Tech and streaming,” she said. “You cannot claim broadcasters are struggling to survive and then force them into a fire sale on the one thing that could actually help them compete and increase revenue.”
The full TVB filing is available here.
