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 is argues that the Media Bureau improperly expanded who is eligible for to get a "lowest unit charge" or LUC for political ads. It also contends that those discounts are an unconstitutional violation of broadcasters first amendment rights.
As previously reported, the Media Bureau issued a Public Notice in March with guidance on who is entitled to the discounted advertising rates under the “FCC’s lowest unit charge (LUC) requirements” that appeared to expand the eligibility for discounted ads. That Notice argued that 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.”
This was challenged by the Television Bureau of Advertising but on August 13, the Media Bureau rejected the TVB’s petition asking the agency to reconsider its ruling, arguing that the agency hadn’t actually changed any of its rules.
However, in late August, the U.S. Court of Appeals for the Fourth Circuit overturned that guidance. That ruling sided with four Democrats running for Congress who had asked the court to limit the organizations and groups who are entitled to discounted political advertising under FCC rules.
The issue is important for broadcasters because expanding the types of advertisers and groups who are be eligible for discounted ads could significantly reduce the revenue broadcasters get from political advertising in the hotly contested upcoming midterms.
In a Sept. 14 filing, the TVB, which is backed by broadcasters, argued that “the 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],” the TVB argued. “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.”
In addition, the TVB argues that “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.”
The expansion of eligibility for political ad discounts, which essentially force privately owned broadcasters to subsidize political groups, has been backed by Republicans and attacked by Democrats.
As previously reported, Commissioner Anna Gomez emphasized the potential harm to stations by arguing that "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. 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.
