Fourth Circuit Rejects FCC Effort to Shield Bureau-Level Decisions from Judicial Review and Sets Aside “Lowest Unit Charge” Rate Guidance
On August 25, 2026, a panel of the U.S. Court of Appeals for the Fourth Circuit held in Brown v. FCC that a public notice issued by the Federal Communications Commission (FCC)’s Media Bureau constitutes a “final order” of the Commission subject to judicial review—even when the FCC had not yet acted on an application for review of the Bureau’s action. The court also held that the guidance issued by the Bureau—which stated that broadcasters were required to extend favorable “lowest unit charge” (“LUC”) advertising rates to joint fundraising committees and coordinated expenditures by political parties—was inconsistent with the Communications Act, which imposed this requirement only for candidates and their authorized campaign committees.
The FCC has increasingly delegated authority to its Bureaus to adopt substantive policy decisions while arguing that such decisions are unreviewable until the full Commission has acted on an application for review of the Bureau’s decision. Several other courts of appeals have agreed that judicial review is not available prior to the FCC acting on an application for review. The Fourth Circuit rejected the “Catch-22” this creates for regulated entities, in a decision that could be significant for FCC practitioners generally if adopted more broadly.
Background: The FCC’s Bureau-Level Guidance on LUC Rates
Under the Communications Act, broadcasters must offer “legally qualified candidates” for public office the “lowest unit charge” for advertising time during specified pre-election windows—45 days before a primary and 60 days before a general election.1 Historically, this discount has been understood to apply to candidates and their authorized campaign committees.
On March 30, 2026, the FCC’s Media Bureau, acting pursuant to authority delegated by the FCC, issued a “Public Notice” ostensibly to “provide guidance” on the LUC requirement. The Public Notice stated that this requirement applied not only to candidates but also to (1) authorized committees engaging in joint fundraising with candidates, and (2) advertisements qualifying as coordinated expenditures between political parties and candidates. The Public Notice was set to take effect September 4, 2026—in time to govern advertising for the November general election.
Several federal candidates filed an application for review with the full Commission on April 29, 2026, seeking to set aside the Public Notice and urging expedited action given approaching election deadlines. The Commission took no action on the application and on June 22, 2026, the candidates filed a petition for review in the Fourth Circuit.
Fourth Circuit Ruling
In a divided decision, a panel of the Fourth Circuit held that it had jurisdiction to review the challenged notice and that the guidance was inconsistent with the Communications Act.
On the jurisdictional question, the panel identified three bases to conclude it had jurisdiction over the challenge to the Bureau’s action.
First, the court noted that, under the Hobbs Act, courts of appeals have exclusive jurisdiction over “all final orders of the [FCC] made reviewable by [47 U.S.C. § 402(a)].”2 The court concluded that the Bureau’s action was a final order for these purposes. Under 47 U.S.C. § 151(c)(3), an action taken pursuant to delegated authority has “the same force and effect” as a Commission order “unless reviewed [by the Commission] as provided in” § 151(c)(4). The court read this provision to mean that such a decision is a final order from the moment it is issued until it is “reviewed as provided,” meaning that the FCC has completed its review of the challenged action.
Second, as an independent basis for jurisdiction, the court held that the FCC had constructively denied the petitioners’ application for review. It noted in this regard that, notwithstanding the application’s time-sensitive nature, the FCC had taken no steps to act on the application prior to the oral argument before the court of appeals, and the FCC ultimately proposed to dismiss the application rather than address it on the merits.
Third, the court concluded that the Public Notice was a “legislative rule” imposing legally binding obligations on regulated parties and thus necessarily a reviewable final order in the court’s view.
On the merits, the panel held that the LUC requirement applies only to “legally qualified candidates” and their authorized committees—not to political parties or joint fundraising committees with non-candidate members. Under the Communications Act, broadcasters are required to provide the LUC rate for “use” of a broadcasting station by any legally qualified candidate for purposes of his or her campaign.3 The court reasoned that this provision required a candidate to personally use the broadcasting facility, which encompassed expenditures expressly on behalf of the candidate but not situations in which a candidate simply consulted on an ad or authorized use of a station by approving the ad. The court held that use also did not encompass expenditures by a joint fundraising committee that must under FCC regulations be deemed expenditures by a noncandidate committee, not the candidate’s committee. The court vacated the Public Notice.
Judge Wynn wrote separately to emphasize the perceived danger in the FCC’s jurisdictional position. He warned that accepting the FCC’s theory would let the agency use delegated authority as a “get-out-of-review-free card”: a Bureau could issue a binding notice, the full Commission could do nothing, and the rule could take effect without judicial review.
Judge Wilkinson dissented on both the jurisdictional and merits holdings. On jurisdiction, he noted that, by statute, a party seeking review of an FCC action taken pursuant to delegated authority must file an application for review with the full Commission as a “condition precedent” to judicial review.4 He concluded that this required the full Commission to actually pass upon the application for review, noting that the statute ties the period for seeking judicial review to when the FCC “dispos[es] of ” all applications for review.5 He further reasoned that two months of agency inaction could not be considered the constructive denial of an application, and that mandamus was the appropriate remedy for unreasonable delay. On the merits, he viewed the requirement of “use” by a “candidate” to be ambiguous but concluded that the FCC’s more expansive understanding of “use” was more plausible. The FCC’s reading was also, in his view, more consonant with the First Amendment in avoiding denying LUC rates to party-coordinated spending in a manner that would disfavor that speech in violation of the principles articulated in the Supreme Court’s recent decision in National Republican Senatorial Committee v. FEC.
This decision is significant both in potentially clarifying the application of the statutory LUC rate requirement for the upcoming general election and in concluding that decisions made by Bureaus within the FCC may be reviewable even in the absence of review by the full Commission if the FCC fails to act on an application for review in a sufficiently speedy manner. On the latter point, several other courts of appeals, including the DC Circuit, have rejected efforts to seek review of decisions by FCC Bureaus prior to the FCC’s acting on a petitioner’s application for review. Intervenors in the case and the federal government have also already sought emergency relief from the Fourth Circuit’s decision in the Supreme Court. The Fourth Circuit’s statutory and jurisdictional holdings may thus both eventually be addressed by the Supreme Court, but, if the panel’s decision is sustained in the event of any further review, its jurisdictional holding could prove especially consequential in providing regulated entities with a quicker pathway to judicial review in the face of the FCC’s increased use of bureau-level delegated authority to adopt substantive policy decisions.
1 See 47 U.S.C. § 315(b)(1)(A).
2 28 U.S.C. § 2342(1).
3 47 U.S.C. § 315(b)(1)(A).
4 47 U.S.C. § 155(c)(7).
5 Id.
