“Despite the time-sensitive nature of these proceedings, the Commission intentionally took no action and offered no response to the Application for more than three months,” judges said. “The Commission did not, for example, seek responses from impacted parties, or engage in fact finding, or secure supplemental briefing, or solicit public comment, or schedule or conduct an oral argument.”

Instead of assessing the merits of the application, FCC Chairman Brendan Carr this month “proposed the summary dismissal of the Application as unreviewable by the Commission,” the court ruling said. The judges said the “unusual circumstances” amount to a “constructive denial.” They found that the FCC Media Bureau’s public notice constitutes a final order, giving the court jurisdiction to review it.

Court: Agency gave no “statutory justification”

The FCC recognized in 1991 that only candidates, and not independent entities that support or oppose candidates, are entitled to the lowest rates, the 4th Circuit ruling said. Despite that, the FCC public notice in March presented the new guidance as a “remind[er]” that merely “restate[s] previous Media Bureau guidance regarding LUC eligibility.”

The FCC public notice identified no previous Media Bureau guidance to support its claim that political parties and joint fundraising committees with non-candidate members can be entitled to the LUC, judges wrote. “Rather than heeding the plain language of the LUC requirement, the Public Notice requires broadcasters to extend the LUC to political parties and joint fundraising committees with non-candidate members, without providing any statutory justification for that rule,” the ruling said.

The FCC public notice said that US law “repeatedly refers to candidates and their authorized committees as sharing the rights it confers,” and that candidates may designate an authorized committee that is “established solely for the purpose of joint fundraising.”