The Supreme Court apparently wasn't finished with the 4th Circuit Court of Appeals after all. On Wednesday, the High Court stepped in for the second time in just over a month to halt a lower court ruling involving the Federal Communications Commission (FCC) and discounted political advertising rates. This time, the issue wasn't so much who gets the discount as who gets to decide — and how quickly.
And the 4th Circuit's attempt to impose a 48-hour deadline on the FCC didn't exactly sit well with the justices.
A Bit of Background
Under federal law, broadcasters must offer political candidates their lowest available advertising rates during specified periods before elections. These are known as lowest unit charge (LUC) rates.
In March, the FCC's Media Bureau issued a public notice stating that the favorable rates were available not only to political candidates but also to certain joint fundraising committees and political parties engaged in coordinated campaign activities.
Four congressional candidates challenged that interpretation, arguing that the discounted rates should be reserved for candidates themselves. They initially asked the full FCC to review the notice. But while that request was still pending, they also took their challenge to the 4th Circuit.
A divided appellate panel sided with the candidates and set aside the FCC notice.
There was just one rather large procedural problem with that, though: Federal law requires the FCC to rule on an application for review before the dispute can proceed to federal court.
In September, SCOTUS stayed the 4th Circuit's decision, explaining that the appellate court likely lacked jurisdiction because the candidates hadn't waited for the FCC to finish its review.
That might have been the end of the immediate judicial wrangling. Except that It wasn't.
The 4th Circuit Gives It Another Go
On October 7, the same appellate panel ordered the FCC to resolve the candidates' pending application by October 9 — giving the agency just 48 hours to complete its work.
The FCC was still considering comments, including those submitted in a related proceeding. Nevertheless, the appellate court concluded that compelling an immediate decision was necessary to move the litigation forward.
The FCC sought emergency relief from the Supreme Court, which temporarily blocked the deadline while considering the request. And on Wednesday, the justices granted the stay.
In an unsigned per curiam opinion, the Court explained that while the Communications Act requires the FCC to decide applications for review, it doesn't impose a specific deadline for doing so. Nor does that statute authorize federal judges to take over the agency's scheduling decisions.
The Court emphasized that a writ of mandamus — an extraordinary judicial order compelling someone to act — is reserved for exceptional circumstances. And ordering the FCC to abandon its ongoing deliberations and produce a final decision in two days didn't qualify.
As the Court put it:
Our system of separation of powers does not allow the Judiciary to meddle in 'the workings of a coordinate branch of the Government' in this manner.
So Now What?
The Supreme Court stayed the 4th Circuit's October 7 order pending the filing and disposition of a timely petition for certiorari.
Now, to be clear — as is so often the case these days — this is a procedural ruling, not one on the merits. The Court did not decide which political advertisers are entitled to the discounted rates. That underlying disagreement remains unresolved. Instead, the justices made clear that the FCC must be allowed to complete its own review process without an appellate court imposing an extraordinary, unsupported deadline.
Justices Sonia Sotomayor and Ketanji Brown Jackson indicated that they would have denied the stay applications.
But for now, the 4th Circuit's attempt to hurry things along has been put on hold — and the FCC gets to finish its homework on its own timetable.