Yesterday, TechFreedom filed comments urging the Federal Communications Commission (FCC) to rescind “guidance” issued in March expanding who qualifies for the “lowest unit charge” (LUC) discount from broadcasters for political candidate ads. Previously, only political candidates and their individual committees qualified, but the FCC asserts that political party committees and other joint fundraising committees also qualify. Section 315 also bars broadcasters from refusing to carry such ads, even if they contain profanity, gore, or violence. Cable providers, in turn, must carry such ads on broadcast station channels. Our comments explain the procedural failures involved in the FCC’s reinterpretation of this law, the resulting chaos in the courts, and the failure of the Commission and courts to recognize that expanding compelled carriage of speech violates the First Amendment. 

“This is another blatant attempt by Brendan Carr to abuse his office to serve his party’s political interests,” said Berin Szóka, President of TechFreedom. “While Democratic candidates have outraised Republican candidates, Republican party committees have outraised their Democratic counterparts by hundreds of millions of dollars because party committees can accept vastly larger donations from individuals than can candidate committees. In the guise of a ‘reminder,’ Carr reinterpreted the law to allow Republican party committees to leverage their fundraising advantage to buy discounted advertising. By dragging out this process, he’s ensured that his unlawful reinterpretation will remain in place through this election cycle.”

“Despite the FCC’s talk of defending free speech, it has trampled on the First Amendment rights of broadcasters by expanding a law that compels them to sell ads at a massive discount and carry speech that most people would find offensive regardless of its political content,” said Szóka. “The FCC’s procedural anarchy created chaos in the courts, without anyone representing those who are being compelled to carry unwanted speech. An appeals court rightly blocked the FCC’s interpretation as an incorrect reading of the statute and a procedural violation of administrative law. A dissenting opinion speculated, based on no briefing at all, that the First Amendment favored the FCC’s expansive interpretation. The Supreme Court issued an emergency stay of the appellate decision, restoring the FCC’s notice. A single paragraph speculated about possible First Amendment injury to party committees if they lost the discount the FCC had just given an entitlement to—for the first time. But neither preliminary opinion considered the relevant First Amendment case law.”

“Limiting subsidy eligibility inflicts no First Amendment injury absent factors not present here, while expanding eligibility violates the First Amendment when it compels private speakers to carry unwanted speech,” continued Szóka. “The harm here isn’t just to broadcasters’ profit margins; it’s to the editorial control that the Supreme Court has long recognized. It does not matter that broadcasters and cable operators have not raised these issues before. Broadcasters have raised them now, and the Commission must address them. The constitutionality of Section 315’s political advertising rules is doubtful, but at a minimum, expanding eligibility for the LUC discount and compelled carriage greatly aggravates the First Amendment injury—and thus favors the narrow interpretation that predated the FCC’s notice, not the FCC’s expansive interpretation.”

“The FCC must immediately rescind the March Notice as unlawful,” concluded Szóka. “If the Commission thinks the longstanding narrow interpretation of Section 315 eligibility is incorrect, it should open a rulemaking. If it had done so a year ago, it could have addressed the First Amendment issues at stake properly and provided clarity well before this year’s election started. It must not use further dilatory tactics to muddy the waters through the 2028 election.”

###

Find these comments on our website and share them on Twitter and Bluesky. We can be reached for comment at media@techfreedom.org. Read our related work, including:

About TechFreedom: 

TechFreedom is a nonprofit, nonpartisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.

</>