On August 25, 2026, a divided panel of the U.S. Court of Appeals for the Fourth Circuit set aside guidance by the FCC’s Media Bureau stating that two types of political advertising were entitled to the favorable “lowest unit charge” (“LUC”) rate: ads paid for as “party coordinated expenditures,” meaning ads paid for by a party in coordination with a federal candidate, and ads placed by joint fundraising committees involving a federal candidate. This question had become particularly salient after the Supreme Court’s decision in June that struck down limits on party coordinated expenditures, allowing unlimited party spending in coordination with candidates, as we explained here. The Fourth Circuit’s ruling was in response to a challenge to the Media Bureau’s Public Notice by four Democratic candidates for federal office. The ongoing litigation has a direct and immediate impact on broadcasters and political advertisers, but its broader significance may lie in what the Fourth Circuit said about judicial review of bureau-level FCC actions.
The Media Bureau’s Public Notice took the position that LUC treatment applies to advertisements by joint fundraising committees with both federal candidate members and non-candidate members, as well as to political party advertisements that are coordinated with federal candidates. The Bureau described its action as a “reminder” of existing guidance, although it did not cite to any formal Commission guidance on the subject.
On the merits, the Fourth Circuit concluded that the statute’s reference to a candidate’s “use” of a station requires an active role on the candidate’s part; candidate authorization of another entity’s advertisement is not enough. Under this interpretation, a coordinated party expenditure is the party’s use rather than the candidate’s, and a joint fundraising committee’s spending is attributable in substantial part to its non-candidate members—all leading to the Fourth Circuit’s conclusion that the Public Notice improperly required broadcasters to extend LUC treatment to these advertisements.
The more widely relevant part of the decision concerns when a bureau-level FCC action may be challenged in court. The FCC’s position was (and has long been) that a bureau-level decision is not “final” and cannot be challenged in court unless and until the Commissioners review it. In practical terms, this has meant that aggrieved parties first must seek review by the full Commission—via the filing of an “Application for Review”—and wait for the Commissioners to act before bringing a court challenge. Here, the candidates challenging the Public Notice had asked for the full Commission to review it, but the Commission had not acted on that request by the time of the court’s decision.
The Fourth Circuit majority panel took the position that the Bureau’s Public Notice was a “final” order that could be appealed directly to court. The majority panel had two independent grounds for this conclusion. First, it found that the Commission had “constructively denied” the candidates’ Application for Review by failing to act on it on a timely basis and by signaling to the court that the FCC intended to deny it anyway. Second, and most notably, it found that the Bureau’s Public Notice “is, and always has been” a final order of the Commission under the Communications Act—interpreting the governing statute in a way that arguably could render many Bureau-level actions ripe for appeal.
Judge Wilkinson, in dissent, disagreed vigorously with this aspect of the decision. He argued that a Bureau decision by its nature is not “final,” particularly given that the full Commission is legally required to consider an Application for Review seeking review of the Bureau’s action. The proper response to agency delay, in his view, was a mandamus action to compel Commission action, not a finding that roughly two months of inaction amounted to a constructive denial. He cautioned that the majority’s approach could open “[c]ountless future FCC staff decisions” to premature appeal.
On Friday, two national Republican party committees that had intervened in support of the FCC’s position asked the Supreme Court to put the Fourth Circuit’s decision on hold pending a review on the merits by that Court. The FCC and Solicitor General made similar filings yesterday. They took issue both with the Fourth Circuit’s determination that the Media Bureau’s Public Notice was “final” and with the finding that ads paid for by coordinated party expenditures and joint fundraising committees that include non-candidate members are not entitled to the LUC rate.
The ongoing litigation is being closely watched by both broadcasters and political advertisers, particularly with the 60-day window in which the LUC rate will be in effect for the general election starting on Sept. 4. Even for entities not involved in political advertising on TV and radio, the litigation also could impact litigation strategy concerning other bureau-level actions by the FCC.