FCC委员就政治广告最低单价规则扩展发表异议，相关规则已被第四巡回法院同日阻断

STATEMENT OF COMMISSIONER ANNA M. GOMEZ Re: Entitlement to Lowest Unit Charge for Legally Qualified Candidates for Federal Office and All Authorized Committees, Order on Application for Review of Public Notice (DA 26-851) (August 25, 2026). The establishment of rules through a bureau-level public notice to remind the public of unwritten guidance given by a former FCC staff member on how to interpret interrelated statutes is neither legal nor an established FCC practice. That is because it is not reasoned decision making and there is no precedent for such action. As a starting point, it is important to understand the significance of the action at issue. The Commission is not always unanimous, so it is notable that we are with regard to the fact that the legacy broadcast industry has been upended by the advent and growth of digital advertising and the resulting reduction in legacy broadcast advertising revenues.1 The direct result of the public notice (PN) “reminding” broadcasters how they should construe which entities are entitled to the lowest unit charge (LUC) required by statute (LUC PN)2 will be a decrease in critical advertising revenues earned by broadcasters during a short window of time that starts next week. As indicated by the parties challenging the LUC PN, this action will have a substantial negative impact on both the broadcasters that will be required to provide reduced pricing to an expanded group of campaign committees3 in addition to the entities, legally qualified candidates, that the statute is intended to benefit.4 Broadcasters have a limited window of time to sell election-related advertising, which makes up a disproportionate percentage of their shrinking slice of the advertising revenue pie,5 and requiring that they sell at lowered rates to an expanded list of entities will lower their revenues. Likewise, candidates need to compete in their communities during the crucial last 60 days of an election cycle. As documented by Applicants, the newly 1 See Amendment of Section 73.3555(e) of the Commission’s Rules, National Television Multiple Ownership Rule, (2026) (statement of Chairman Brendan Carr), https://docs.fcc.gov/public/attachments/DOC-424076A2.pdf; (statement of Commissioner Anna M. Gomez), https://docs.fcc.gov/public/attachments/DOC-424076A3.pdf; (statement of Commissioner Olivia Trusty), https://docs.fcc.gov/public/attachments/DOC-424076A4.pdf. 2 FCC Media Bureau Provides Guidance on Entitlement to Lowest Unit Charge for Legally Qualified Candidates for Federal Office and All Authorized Committees, Public Notice, DA 26-300, 2026 WL 1013722 (MB Mar. 30, 2026) (Order on Reconsideration). 3 Petition for Reconsideration or, In the Alternative, for Declaratory Ruling of the Television Bureau of Advertising, Inc. (Apr. 29, 2026) (Petition for Reconsideration). The Petition for Reconsideration is attached to this statement as Attachment 1. 4 Application for review filed by Sherrod Brown, Jon Ossoff, Roy Cooper, and Kristen McDonald Rivet (Applicants) of a Public Notice issued by the Media Bureau on March 30, 2026 at 9-10 (Application for Review or AFR). The Application for Review is attached to this statement as Attachment 2. 5 See, National Association of Broadcasters Comments, Amendment of Section 73.3555(e) of the Commission’s Rules, National Television Multiple Ownership Rule, at 14, Docket No. 17-318 (filed August 4, 2025). 1 announced interpretation of the LUC will significantly increase the volume of broadcast advertising that can be bought with campaign dollars in this election cycle, which could, in fact, impact the outcome of the election.6 Nothing about this proceeding was handled correctly. The Bureau, without seeking comment, released a public notice purporting to restate existing legal authority.7 The Order on Application For Review (AFR Order) characterizes the LUC PN as merely restating existing legal authority and, on that basis, dismisses the substantive challenges as procedurally defective.8 There is, however, no citation to a substantive Commission action as a source of the rule at issue.9 Instead, there is a citation to a rule providing that broadcasters may seek an oral opinion or ruling from staff.10 Based on the allowed practice that provides a means for individual entities to seek guidance on specific facts, the Commission created a daisy chain of Media Bureau actions and decisions it now purports established that the LUC PN is merely restating “existing legal authority.”11 The substantive decision that forms the basis of its analysis is alleged unwritten informal guidance that happened at some unidentified point in the past. The LUC PN relies on such informal guidance. The Order on Reconsideration relies on the LUC PN. And the AFR Order relies on the LUC PN and the Order on Reconsideration. “Existing legal authority” cannot lawfully be created out of thin air in this manner. The substantive precedent on which the Commission relies for the interpretation and application of complex interrelated statutes is unwritten informal guidance. While an individual broadcaster or its customer may be allowed to rely on unwritten informal guidance in its individual actions, this unwritten informal guidance is being treated here as an established generally applicable rule. Neither the Commission nor the Media Bureau has the authority to adopt generally applicable rules without notice and comment, let alone without committing such a rule to pen and paper and publishing it. Notably, the Commission failed to release for public comment the Application for Review at issue here, as well as the Petition for Reconsideration filed by the Television Bureau of Advertising (TVB) and resolved in the Order on Reconsideration. Nor did it create a docket or 6 Application for Review at 17-19. 7 LUC PN; AFR Order at para. 3. 8 Entitlement to Lowest Unit Charge for Legally Qualified Candidates for Federal Office and All Authorized Committees, Order on Application For Review, paras. 3, FCC No. 26-[[XXX]] (August [[XX]], 2026) (AFR Order) 9 The Media Bureau does not have the authority to adopt generally applicable rules because such action would be new and novel and outside of its delegated authority. 47 U.S.C. § 155(c); 47 C.F.R. §§ 0.61, 0.283(a) and (c). 10 AFR Order at para. 8 (citing The Law of Political Broadcasting & Cablecasting: Political Primer, Update to 1978 Public Notice and Primer, 100 F.C.C.2d 1476, 478, para. 5 (1984) (Political Primer) (providing for parties to “obtain an oral staff opinion or ruling by placing a telephone call to” the Media Bureau’ s political programming staff)). 11 AFR Order at para. 3. 2 other file number that the public could use to locate and track related filings in the Commission’s Electronic Comment Filing System (ECFS). That is not a normal process and, accordingly, I have attached copies of both the Application for Review and the Petition for Reconsideration to this statement. Significant legal issues were raised in both the Application for Review and the Petition for Reconsideration that were not adequately addressed, if at all, in either the AFR Order or the Order on Reconsideration. These include, but are not limited to, a complex analysis of the distinctions between sections (b)(1) and (b)(2) of 47 U.S.C. § 315,12 serious questions about whether the expanded interpretation violates either the First Amendment or the Takings Clause of the Constitution,13 and the contradiction between the LUC PN and the U.S. Solicitor General’s statement to the Supreme Court that the Communications Act “require[s] broadcasters to charge low rates for candidate spending, but not for party spending—whether coordinated or independent.”14 Again, the Commission did not seek comment on these questions. The AFR Order asserts further that there are adequate processes available for parties to challenge the substance of the LUC PN, specifically that the Applicant may either file a petition for rulemaking or petition for declaratory ruling to be decided in the “normal course” and that any specific disputes can be adjudicated on a case-by-case basis.15 This assertion ignores the very time-sensitive and serious facts before us in this case. The 60-day window at issue opens next week. This 60-day window is critical to both broadcasters and candidates for distinct reasons that are reflected in their filings.16 The processes identified by the Commission will not address the issues raised in a timely manner. It is likely that the LUC PN will be found to be either an unlawfully adopted rule, an unlawful statutory interpretation, or both and, if so, the parties will have suffered irreparable injury. Justice delayed is justice denied. Accordingly, I dissent. 12 See Application for Review at pp. 10-17 and Petition for Reconsideration at pp. 4-6. Section 315(b) has multiple subparts that do more than one thing. The Commission conflates them and fails to address the serious statutory construction challenge that is being made to a rule that it is implementing without notice and comment. 13 See Petition for Reconsideration at pp. 15-16, 17-24. 14 See Application for Review at 5 (“{I]n connection with the litigation over the constitutionality of the party coordinated expenditure limits in NRSC v. FEC, the Solicitor General argued in his reply brief that the Communications Act “require[s] broadcasters to charge low rates for candidate spending, but not for party spending—whether coordinated or independent.” Reply Brief for the Federal Respondents at 23, NRSC v. FEC, No. 24-261 (U.S. Oct. 1, 2025), 2025 WL 3068193 (emphasis added).”) see also Petition for Reconsideration at 10. 15 AFR Order at para. 13. 16 See Application for Review and Petition for Reconsideration. 3 Attachment 1 Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) ) Entitlement to Lowest Unit Charge for Legally ) Docket No. ______ Qualified Candidates for Federal Office and All ) Authorized Committees ) DA 26-300 PETITION FOR RECONSIDERATION OR, IN THE ALTERNATIVE, FOR DECLARATORY RULING OF THE TELEVISION BUREAU OF ADVERTISING, INC. Brad Seitter President & Chief Executive Officer Television Bureau of Advertising, Inc. 120 Wall Street 15th Floor New York NY 10005 (212) 486-1111 April 29, 2026 TABLE OF CONTENTS I. SUMMARY OF ARGUMENT .......................................................................................... 2 II. THE PUBLIC NOTICE UPENDS DECADES OF PRACTICE AS TO THE SCOPE OF THE LUC AND IMPROPERLY EXPANDS THE FCC’S RULES AT THE BUREAU LEVEL ...................................................................... 4 III. THE NOTICE’S DEFICIENT ANALYSIS OF THE ACT AND FECA FAILS TO JUSTIFY ITS VAST EXPANSION OF THE LUC .......................................... 6 IV. THE NOTICE’S ANNOUNCEMENT OF NEW POLITICAL BROADCASTING REQUIREMENTS UNDER THE PRETENSE OF A “REMINDER” VIOLATES THE APA ............................................................................. 13 V. THE LUC PROVISIONS ARE CONTRARY TO THE FIRST AMENDMENT AND THE NOTICE’S SUBSTANTIAL EXPANSION OF THEM EXACERBATES THEIR UNCONSTITUTIONALITY ................................................. 17 A. The LUC Provisions Cannot Withstand First Amendment Scrutiny .......................... 17 B. Broadcasting is Entitled to Full First Amendment Protections ................................... 21 VI. FAILURE TO TAKE PROMPT ACTION ON THIS PETITION WILL NECESSITATE JUDICIAL REVIEW OF THE FCC’S MAJOR EXPANSION OF THE LUC REQUIREMENTS ............................................................................................................ 24 VII. CONCLUSION ................................................................................................................. 25 Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of ) ) Entitlement to Lowest Unit Charge for Legally ) Docket No. ______ Qualified Candidates for Federal Office and All ) Authorized Committees ) DA 26-300 PETITION FOR RECONSIDERATION OR, IN THE ALTERNATIVE, FOR DECLARATORY RULING OF THE TELEVISION BUREAU OF ADVERTISING, INC. Pursuant to § 1.106 and § 1.2 of the Federal Communications Commission’s (Commission or FCC) rules,1 the Television Bureau of Advertising, Inc. (TVB) (Petitioner)2 hereby files this petition for reconsideration or, in the alternative, for declaratory ruling. We respectfully request that the Media Bureau and/or Commission (collectively, FCC) abrogate a recent Public Notice of the Bureau purporting to “remind broadcasters and the public” that the lowest unit charge (LUC) requirements apply to all “authorized committees,” including those 1 47 C.F.R. §§ 1.106, 1.2. 2 TVB is the not-for-profit trade association representing America’s local broadcast television industry, including linear and digital platforms. Its members include U.S. television stations, television broadcast groups, advertising sales reps, syndicators, international broadcasters, and associate members. Those members are subject to LUC requirements and rules. TVB actively promotes local media marketing solutions to the advertising community and works to develop advertising dollars for the medium’s multiple platforms, including on-air, online, and mobile. The association and its members are directly impacted by the Public Notice at issue in this filing because it would further artificially and unlawfully depress the rates TVB’s members could charge for their advertising inventory, beyond what existing LUC requirements already do. Those depressed rates cause significant economic harm to TVB’s members. And if the Supreme Court rules in a pending case that limits on coordinated spending are unconstitutional, “[b]roadcasters across the country will face significant increases in advertisements that purport to qualify for lowest unit rates,” inflicting even greater economic harm. Brief for Intervenor- Respondents DNC, DSCC, and DCCC, at 48, Nat’l Republican Senatorial Comm. (NRSC), et al., v. Federal Election Commission (FEC), et al., No. 24-261 (Sept. 29, 2025). that engage in joint fundraising with legally qualified candidates for federal office.3 Under governing law, longstanding precedent, and the position of the U.S. Department of Justice, only a candidate’s designated principal campaign committee is entitled to LUC rates, while other types of joint or hybrid committees are not. The Notice thus purports to cement a substantial expansion of the LUC that is contrary to statute, procedurally defective, and unconstitutional. Moreover, this unlawful expansion exemplifies why the LUC statute and the FCC’s implementing rules violate the First Amendment, and why the FCC should decline to enforce its LUC rules going forward. Failure to take prompt action on this petition and to repudiate the Public Notice will necessitate judicial review. I. SUMMARY OF ARGUMENT The FCC must promptly reconsider and repeal the Bureau’s Public Notice. The Notice errs by declaring that Section 315(b) of the Communications Act of 1934 (Act) and referenced provisions of the Federal Election Campaign Act of 1971 (FECA) extend LUC requirements to the ads of any and all political party committees, political action committees (PACs), or other entities that might conceivably have an “authorized” label attached. The Bureau’s novel position also ignores the statutory and regulatory limitation of the LUC to ads by candidates “in connection with” their campaigns, as set forth in Section 315(b)(1) of the Act and Section 73.1942(a) of the FCC’s rules. Under this clear language, political party, PAC, or coordinated ads focused on political issues or general fundraising, rather than a single candidate’s specific campaign, do not qualify for the LUC. The Notice is also procedurally deficient. While the Public Notice purports to “remind” broadcasters and the public of a pre-existing rule, it actually 3 FCC Public Notice, FCC Media Bureau Provides Guidance on Entitlement to Lowest Unit Charge for Legally Qualified Candidates for Federal Office and All Authorized Committees, DA 26-300 (Mar. 30, 2026) (Notice or Public Notice). LUC rates give candidates the benefits of all discounts offered by a station for the same class and amount of time, without regard to the frequency of the candidate’s advertising. 2 reflects a newly-announced expansion of the LUC rule that should have been considered (if at all) by the full Commission, rather than the Bureau, and in compliance with the notice-and- comment requirements of Section 553 of the Administrative Procedure Act (APA). The Public Notice also contravenes the First Amendment. The LUC provisions in statute and in rules are discriminatory content-based and speaker-based regulations of speech that cannot withstand First Amendment scrutiny. In addition, the LUC provisions impermissibly infringe broadcasters’ own speech and programming decisions. The FCC therefore should determine to no longer enforce Section 73.1942 of its rules, especially given its repudiation nearly 40 years ago of the spectrum scarcity rationale for affording broadcasters reduced constitutional protections. Whatever its legitimacy as an initial matter, the spectrum scarcity rationale has been overcome by the explosion in platform and outlet options in the current media environment. At the least, the FCC must promptly abrogate the Public Notice and its expansion of the LUC requirements as unconstitutional, as well as contrary to statute and procedurally defective. To remove the uncertainty and chill created by the Notice’s extension of the LUC in the midst of this political season, the FCC also must confirm that only a candidate and the candidate’s designated principal campaign committee are entitled to the LUC. The March 30 Public Notice is already inflicting both economic and First Amendment harm on broadcasters and other TVB members because of the confusion it has created.4 The FCC’s failure to promptly repudiate and remove that Notice will necessitate judicial review of the FCC’s new position on the applicability of the LUC. 4 See, e.g., Susan B. Anthony List v. Driehaus, 573 U.S. 149, 155, 164 (2014) (recognizing that the “chill[]” caused by “the threat of future enforcement” of speech restrictions inflicts First Amendment harms). 3 II. THE PUBLIC NOTICE UPENDS DECADES OF PRACTICE AS TO THE SCOPE OF THE LUC AND IMPROPERLY EXPANDS THE FCC’S RULES AT THE BUREAU LEVEL For more than five decades, broadcasters, candidates, parties, PACs, and other participants in the political advertising marketplace all understood, under the Act and FCC rules, that only a candidate and their singular designated principal campaign committee were entitled to the LUC. Now, a rapidly growing universe of hybrid committees, joint committees, and other entities are stretching the imprecise wording of Section 315(b)(2) to claim they are “authorized” by a candidate to receive the LUC for political ads, even for ads unconnected to the candidate’s specific election campaign. Stations also increasingly receive requests for preferential LUC rates from multiple campaign committees claiming to be authorized by a single candidate. Essentially, these new kinds of party committees and PACs are impersonating a candidate’s designated principal campaign committee to avail themselves of the special rates intended by Congress only for candidate ads, and not for issue ads in disguise. These claims have caused real harms by increasing confusion in the political advertising marketplace and creating an untenable environment for broadcast stations seeking to fulfill their obligation to provide reasonable access at LUC rates for legitimately entitled buyers of ads for legally qualified candidates. The supposedly “authorized” committees stake their claims to the LUC on flawed interpretations of Section 315(b) of the Act and the FCC’s LUC rule. Specifically, Section 73.1942(a) of the rules mirrors the text of Section 315(b)(1), and both state that the “charges” made for “the use of any broadcasting station by any person who is a legally qualified candidate for any public office in connection with his or her campaign for nomination for election, or election, . . . shall not exceed” the LUC.5 The statutory provision that first established the LUC in 5 47 C.F.R. § 73.1942(a); 47 U.S.C. § 315(b)(1). FECA amended Section 315(b) of the Act to add the LUC provision. 4 1971 and the FCC’s implementing rule make clear that LUC ad rates are for candidates, rather than other political entities, and do not mention “authorized committees” at all. Over 30 years later in the Bipartisan Campaign Reform Act of 2002 (BCRA), Congress amended Section 315(b) of the Act by adding subsection (b)(2) that placed conditions on Federal candidates’ entitlement to the LUC. Section 315(b)(2)(A) provides that a Federal candidate shall not be entitled to the LUC for a political ad unless the candidate certifies “that the candidate (and any authorized committee of the candidate) shall not make any direct reference to another candidate for the same office” in such an ad, “unless such reference meets” the content and appearance requirements in Section 315(b)(2) for a candidate’s “stand by your ad” statement (i.e., “I approve this message”).6 Given these developments, Petitioner submits that the traditional practice of applying the LUC only to the campaign-connected ads of a candidate or their designated principal campaign committee should be reconfirmed as consistent with the Act and the FCC’s LUC rule, Section 73.1942. Unfortunately, the Bureau’s Public Notice did the exact opposite by significantly expanding the LUC rule to myriad types of committees and ads to which the rule did not previously apply. Notably, the Bureau mischaracterizes the Notice as mere “guidance” that “reminds” broadcasters and the public about the LUC requirements.7 But the Bureau does not cite any Commission orders, Bureau decisions, published decisions, or even earlier Public Notices to support its new claims about the breadth of the LUC’s application – because there are none. And 6 47 U.S.C. § 315(b)(2)(A). Similarly, if a “candidate for Federal office (or any authorized committee of such candidate)” refers to an opposing candidate without meeting the “stand by your ad” requirements, then the candidate shall not be entitled to the LUC. 47 U.S.C. § 315(b)(2)(B). The content and appearance requirements of the “stand by your ad” messages for broadcast ads are set forth in §§ 315(b)(2)(C) & (D). 7 Notice at 1. 5 the Bureau explicitly calls the Notice an “opportunity to restate previous Media Bureau guidance regarding LUC eligibility for candidate-party coordinated ads,” but tellingly fails to cite any such previous guidance.8 In reality, the Public Notice announces expanded, substantive legal requirements under the LUC rule that presumably can be enforced against broadcasters for alleged noncompliance. These new requirements, moreover, are based on the Bureau’s conjectures about application of LUC obligations to new and different types of entities never before addressed by the Commission. As “novel questions” unaddressed by previous FCC decisions, these matters should not have been addressed by the Media Bureau in the first instance.9 The Bureau’s improper expansion of the LUC to innumerable additional party committees and PACs and countless political ads will profoundly impact broadcasters, a variety of political entities and actors, and even commercial advertisers competing for airtime against a proliferation of political ads. It also creates great uncertainty for both stations and ad buyers by unsettling other portions of the Act and FCC rules dealing with political advertising - including reasonable access, equal opportunities, and no censorship.10 In sum, the Notice is an ill-timed and disruptive intervention into the 2026 political season. III. THE NOTICE’S DEFICIENT ANALYSIS OF THE ACT AND FECA FAILS TO JUSTIFY ITS VAST EXPANSION OF THE LUC 8 Id. at 2. 9 Under 47 C.F.R. § 0.283, “[m]atters that present novel questions of law, fact or policy that cannot be resolved under existing precedents” must be “referred to the Commission en banc for disposition,” rather than resolved by the Media Bureau pursuant to delegated authority. 10 See 47 U.S.C. § 312(a)(7); 47 C.F.R. § 73.1944(a) (providing federal candidates “reasonable access” to, and the ability to purchase “reasonable amounts of time” for the use of, broadcast stations); 47 U.S.C. § 315(a) (“If any licensee shall permit . . . a legally qualified candidate . . . to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office . . . Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section.”); 47 C.F.R. § 73.1941. 6 The Bureau’s analysis of the “authorized” committee question under the Act and FECA consists only of two short paragraphs and a pretextual conclusion. In the first paragraph, the Notice states that, although Section 73.1942 of the rules does not reference a candidate’s “authorized committee,”11 Section 315(b) of the Act, “which section 73.1942 is intended to implement, repeatedly refers to candidates and their authorized committees as [supposedly] sharing the rights it confers.”12 Thus, the Notice claims that the FCC has “long held that the LUC provisions of section 315(b) apply to both candidates and their authorized campaign committees.”13 The Bureau’s abbreviated account here is incomplete and potentially misleading.14 The Notice then attempts to parse the dense language of FECA and its relation to Section 315 of the Act in three sentences. First, it notes that subsection 315(b)(2)(F) of the Act defines the term “authorized committee” by referring to FECA, which defines an authorized committee as “the principal campaign committee or any other political committee authorized and designated by a candidate to receive contributions or make expenditures on behalf of such candidate.”15 Next, while the Bureau recognizes that “FECA generally prohibits the designation as an authorized committee a political committee that supports more than one candidate,” it cites an 11 Notice at 1, citing 47 C.F.R. § 73.1942(a). 12 Id., citing 47 U.S.C. § 315(b). 13 Id., citing In the Matter of Codification of the Commission’s Political Programming Policies, Memorandum Opinion and Order, 7 FCC Rcd 4611, 4614, para. 23 (1992) (1992 Political Programming Order). 14 As described in Section II, in 1971 Congress passed FECA amending § 315(b) to adopt the LUC but making no mention of “authorized committees.” See 47 U.S.C. § 315(b)(1). In 2002, Congress passed BCRA, which added the “stand by your ad” requirements in § 315(b)(2) – the only provision in § 315 to use the term “authorized committee.” The clear differences between § 315(b)(1) and § (b)(2) – disguised by the Notice referring to “section 315(b)” generally – undercut any argument that § 315(b)(2)’s two parenthetical references to “authorized committee” in the “stand by your ad” provisions require that all committees created by parties or PACs with the authorized label somehow “share” the LUC rights granted to candidates under § 315(b)(1). 15 Notice at 1, citing 47 U.S.C. § 315(b)(2)(F) and 52 U.S.C. § 30101(6). 7 exception allowing candidates to designate as an authorized committee a political committee “‘established solely for the purpose of joint fundraising,’” as though that single exception proves the Bureau’s entire argument and somehow justifies the Notice’s broad expansion of the LUC rule, including to committees not dedicated to joint fundraising.16 In the third sentence, the Bureau concludes by stating that the “FCC’s rules do not recognize distinctions between types of committees for LUC purposes (e.g., principal campaign committee, joint fundraising committee) provided that the committee is an authorized committee of the candidate under the FECA.”17 But Section 73.1942 of the rules does not refer to any committee(s) of any candidate – a fact the Notice recognized in the previous paragraph. This silence loudly undercuts the Notice’s claims. The Bureau’s erroneous conclusion means that broadcasters must provide the LUC to any hybrid, joint, or other committee a political party or PAC can envision, so long as a certain label is attached. However, the Bureau ignores crucial elements of Section 315(b), FECA, and Section 73.1942 of the rules that preclude this boundless approach that the Notice derived from its insufficient statutory analysis. Petitioner submits that only a candidate’s designated principal campaign committee is entitled to LUC rates, while other types of joint or hybrid committees are not. As set forth below, this approach is consistent with relevant federal laws and rules, as well as the view of the U.S. Department of Justice, as reflected in a recently filed brief with the U.S. Supreme Court. The Bureau correctly states that the FCC has long held that the LUC provisions of Section 315(b) of the Act apply to both a legally qualified candidate and their authorized committee,18 even though Congress adopted the LUC in the context of candidate ads without any 16 Id. at 2, citing 52 U.S.C. §§ 30102(e)(3)(A) and (A)(ii). 17 Id. at 2. 18 Notice at 1, citing 1992 Political Programming Order, 7 FCC Rcd at 4614. 8 reference to any committees. In support, the Bureau cites the 1992 Political Programming Order, in which the FCC stated, “[W]e have always held that only candidates or their authorized campaign committees are entitled to the LUC pursuant to Section 315(b).”19 But the Notice notably omits the very next sentence in that 1992 order: “Thus, even if an independent entity produces an advertisement that includes an appearance by a candidate, that independent entity is not entitled to the LUC.”20 Accordingly, even the order on which the Bureau relies makes clear that it is not sufficient for a candidate to merely “authorize” a party, PAC, or other kind of hybrid or joint committee for those committees to obtain the LUC. The entity itself must be the “authorized committee” of a legally qualified candidate.21 As the Notice stated, Section 315(b)(2) of the Act defines “authorized committee” by referring to Section 30101 of FECA, which states that the term means the “principal campaign committee or any other political committee authorized by a candidate under section 30102(e)(1) of this title to receive contributions or make expenditures on behalf of such candidate.”22 Section 30102(e)(1) provides that each candidate shall designate a committee to serve as their “principal campaign committee.”23 Therefore, this designated “principal campaign committee” is an “authorized committee” under both Section 30101 of FECA and Section 315(b)(2) of the Act, which refers to Section 30101. Section 30102(e)(1) of FECA further provides that a candidate “may designate additional political committees . . . to serve as authorized committees of such candidate,”24 but only if those 19 1992 Political Programming Order, 7 FCC Rcd at 4614. 20 Id. (emphasis added). 21 That same paragraph of the 1992 order also twice refers to a candidate or the candidate’s “authorized committee,” in the singular. Id. at 4613. 22 47 U.S.C. § 315(b)(2)(F); 52 U.S.C. § 30101(6). 23 52 U.S.C. § 30102(e)(1). 24 Id. 9 committees exclusively support a single candidate, subject to two exceptions: (1) a Presidential candidate may designate the national committee of their political party as “a principal campaign committee,” and (2) candidates “may designate a political committee established solely for the purpose of joint fundraising by such candidates as an authorized committee.”25 Thus, although such “joint fundraising committees” may be characterized as “authorized committees” under FEC rules, the plain language of FECA restricts their designation as an authorized committee exclusively to fundraising, not to other purposes such as campaigning or buying advertising, the latter of which is the only political activity implicating the LUC and associated FCC rules. The U.S. Department of Justice agrees. A mere five months ago, well after the question of the LUC’s applicability to hybrid and joint fundraising committees became a matter of public controversy, the Solicitor General adopted essentially the same view in a 2025 filing with the Supreme Court. Therein, the Solicitor General stated that the LUC rules “require broadcasters to charge low rates for candidate spending, but not for party spending—whether coordinated or independent,”26 adding that, even if the federal limits on coordinated expenditures were removed, “[p]arties could spend more money on advertisements, but broadcasters still would not be required to charge parties special low rates.”27 Under Sections 30101 and 30102 of FECA, therefore, only a candidate’s designated principal campaign committee is entitled to the LUC, while joint fundraising committees, hybrid, and other kinds of committees are not “authorized committees” eligible for LUC rates under 25 Id. at § 30102(e)(3)(A)(i)-(ii) (emphasis added). 26 Reply Brief for the Federal Respondents at 23, NRSC, et al., v. FEC, et al., No. 24-261, 2025 WL 3068193 (Oct. 1, 2025) (emphasis added). NRSC and others brought this case to challenge the constitutionality of federal government limits on coordinated expenditures between political parties and candidates, including spending on advertising. NRSC, et. al. v. FEC, et. al., 117 F.4th 389 (6th Cir. 2024), cert. granted, 2025 WL 1787717 (U.S. Jun. 30, 2025) (No. 24-261). 27 Reply Brief for the Federal Respondents at 23. 10 Section 315(b)(1) of the Communications Act or the FCC’s rules. The Bureau’s view is thus mistaken and must be corrected.28 Beyond its flawed analysis of FECA, the Bureau’s reasoning also fails because it relies on an incomplete analysis of Section 315(b) of the Act and FCC rules. At the beginning of Section III, Petitioner explained that the Notice presents a brief, potentially misleading depiction of Section 315(b) and Section 73.1942, which, in addition to the errors identified above, also ignores highly pertinent LUC language in Section 315(b)(1). This language directly governs who is entitled to the LUC, making no references to committees, authorized or otherwise: “The charges made for the use of any broadcasting station by any person who is a legally qualified candidate for any public office in connection with his campaign for nomination for election, or election, to such office shall not exceed” the LUC.29 As set forth in Section II, Section 73.1942(a) of the FCC’s rules is virtually identical to Section 315(b)(1) of the Act. Adopted decades later in BCRA, Section 315(b)(2), on the other hand, sets forth the requirements for “stand by your ad messages” that must be met if an ad references a candidate’s opponent. Despite the Notice’s vaguely misleading statement that Section 73.1942 is “intended to implement” “section 315(b),”30 the FCC’s rule clearly only implements – by copying nearly word-for-word – Section 315(b)(1)’s obligation to provide the LUC to legally qualified candidates in connection with their campaigns. It is only Section 315(b)(2) that uses the term 28 The Public Notice said nothing about state or local elections. Petitioner believes that, because the controlling definition of “authorized committee” in FECA is linked to federal election finance limitations, the exceptions in Section 30102(e)(1) of FECA seem limited to federal candidate committees. There is nothing else in FECA, the Communications Act, FCC rules, or elsewhere suggesting that these exceptions apply to state or local political parties, or other entities claiming to be “authorized” by a state or local candidate. Thus, even if such entities claimed to be “authorized” by a candidate under state or local law, they would not qualify for the LUC under federal law. The FCC should confirm this understanding of the relevant law. 29 47 U.S.C. § 315(b)(1). 30 Notice at 1. 11 “authorized committee” and then only in the context of an ad’s content. A straightforward reading of the statute thus makes clear that Section 315(b)(1) governs who is entitled to the LUC, while Section 315(b)(2) only governs what a federal candidate and an authorized committee of the candidate must do in order for that “candidate” – not any authorized committee – to receive the LUC (i.e., include a properly formatted “stand by your ad” message in the ad).31 A proper analysis of the structure and terms of Section 315(b) of the Act and Section 73.1942 of the rules accordingly do not support the Notice’s claim that the statute and FCC rules mandate that the LUC be provided to any and all party, PAC, or other committees labeled “authorized.” Such a reading unconvincingly mixes different statutory provisions adopted decades apart with very different purposes to arrive at an erroneous conclusion to which a reviewing court would not defer and would almost certainly reject.32 Moreover, the plain language of Section 315(b)(1) militates against the Notice’s conclusions. Under that provision, only those uses of a station “in connection with” a specific candidate’s campaign for election qualify for the LUC.33 A legally qualified candidate for office, for example, is not entitled to the LUC for ads about the car dealership or insurance company she happens to own.34 Accordingly, requests for ads that stations have received from allegedly “authorized committees” about ballot issues, candidates in other races, and issues unconnected to the candidate’s specific campaign are nothing more than issue ads and are not entitled to the 31 “In the case of a candidate for Federal office, such candidate shall not be entitled to receive” the LUC for use of a broadcast station unless the candidate certifies that the candidate (and any authorized committee of the candidate) shall not directly refer to another candidate for the same office, unless such reference meets the “stand by your ad” content and appearance requirements. 47 U.S.C. § 315(b)(2)(A) (emphasis added). 32 See Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). 33 “When interpreting a statute, we begin with the text,” Lackey v. Stinnie, 145 S. Ct. 659, 666 (2025), and “[i]n determining the scope of a statute” specifically, courts similarly “look first to its language.” United States v. Turkette, 452 U.S. 576, 580 (1981). 34 See FCC, Political Primer, 100 FCC 2d 1476, 1514 (1984). 12 LUC. A very brief, extraneous appearance by a candidate, often tacked onto the end of PAC or party ads, does not transform them into candidate ads “in connection with” the candidate’s campaign, regardless of whether the committee is “authorized” by the candidate or the ads are paid for with coordinated funds, as stated in the Solicitor General’s recent Supreme Court brief. For these reasons, the Bureau’s position by default that all committees of all kinds are entitled to the LUC, so long as they are supposedly “authorized” by a candidate, is arbitrary and unsupported by facts or law. IV. THE NOTICE’S ANNOUNCEMENT OF NEW POLITICAL BROADCASTING REQUIREMENTS UNDER THE PRETENSE OF A “REMINDER” VIOLATES THE APA The Bureau inaccurately characterizes the Public Notice as “guidance” intended to “remind” broadcasters about their requirements under the LUC rule and the Act, and to “restate previous Media Bureau guidance regarding LUC eligibility for candidate-party coordinated ads.”35 As observed in Section II, no such “previous” guidance is cited, and it appears nonexistent. In fact, the Notice appears to set forth new substantive LUC requirements that substantially broaden the scope of the FCC’s existing rule and that have significant economic implications. And these new requirements, e.g., giving the LUC to party/candidate coordinated advertisements, are mandatory and enforceable, with broadcasters subject to complaints and FCC enforcement actions for claimed noncompliance.36 In short, the new LUC requirements are rules subject to the APA’s notice-and-comment provisions and should not have been announced as a fait accompli via a Bureau-level Public Notice. 35 Public Notice at 1-2. 36 See id. at 2 (declaring that “candidate-party coordinated advertisements are subject to the LUC provisions”). 13 Under the APA, promulgation of a rule generally requires notice published in the Federal Register and an opportunity for interested persons to comment.37 “A rule is defined very broadly”38 to mean “the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy,”39 which clearly describes the Notice’s substantive LUC requirements. Where, as here, a rule has the “force and effect of law” or “alter[s] the rights or interests of parties,” it is “subject to the APA’s notice-and-comment provisions.”40 The Notice altered the rights and interests of broadcasters and non-authorized committees, but without notice or public comment. Accordingly, these new legal requirements are procedurally defective and cannot be enforced. The FCC, moreover, cannot “escape” notice-and-comment requirements by labeling the Notice’s “substantive legal addition to [the LUC] rule a mere interpretation.”41 The U.S. Court of Appeals for the D.C. Circuit, for example, rejected an agency’s claim that its “Guidance” – as the Bureau’s Public Notice is labeled – only interpreted an existing rule, when that “Guidance” had “significantly broadened” that rule, which the agency could not legally do without complying with the requisite rulemaking procedures.42 In another case, the court found that an agency erred by not adhering to the APA’s rulemaking requirements when it announced legally binding findings via a press release on its website.43 The Bureau here similarly erred by releasing on the FCC’s website a Public Notice that “expanded the scope” of the legally binding requirements 37 5 U.S.C. §§ 553(b) & (c). 38 Safari Club Int’l v. Zinke, 878 F.3d 316, 332 (D.C. Cir. 2017) (internal citation omitted). 39 5 U.S.C. § 551(4). 40 City of Billings v. Transportation Sec. Admin., 153 F.4th 46, 51-52 (D.C. Cir. 2025). 41 Appalachian Power Co. v. EPA, 208 F.3d 1015, 1024 (D.C. Cir. 2000). See 5 U.S.C. § 553(b) (stating that the APA’s rulemaking requirements do not apply to “interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice”). 42 Appalachian Power, 208 F.3d at 1028 (concluding that the “more expansive reading” of the EPA’s rule, unveiled in a document labeled as agency “Guidance,” could not stand). 43 Safari Club, 878 F.3d at 323. 14 under the LUC rule without notice and comment44 or publication in the Federal Register.45 Nor can the FCC avoid APA procedures by claiming that its Public Notice was only a “clarification” of the LUC rule because the Notice “effects a substantive change” in that preexisting rule.46 By adopting this Notice without providing interested parties any opportunity to comment, the FCC furthermore has created inconsistencies and uncertainties as to how these “authorized” ads are supposed to be treated under other FCC rules. For instance, are these “authorized” committee ads entitled to “reasonable access” to broadcast stations, even though reasonable access is governed by a wholly different section of the Act, Section 312?47 If this Notice is intended to provide reasonable access for these “authorized ads,” the resulting burden on broadcasters from having to sell advertising to new classes of political advertisers at artificially low rates dramatically increases. The increased demand also may limit the ability of broadcasters in states with multiple contested federal races to sell advertising to a station’s valued commercial advertisers, or to state and local political candidates who have no reasonable access rights. Application of the revised LUC rules may well rise to the level of an unconstitutional regulatory taking. That inquiry turns on “(1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed 44 Appalachian Power, 208 F.3d at 1024; see also Safari Club, 878 F.3d at 332-33 (rejecting the label of “informal adjudication” that the agency had tried to attach to its action and concluding that the agency’s findings reflected a rule and thus compliance with the APA was required). 45 “All ‘interpretations of generally applicability’ and ‘statements of general policy’ must be published in the Federal Register,” even for those policy statements and interpretations that do not require compliance with notice-and-comment rulemaking procedures. Exelon Gen. Co., LLC v. Local 15, IBEW, 676 F.3d 566, 577 (7th Cir. 2012), quoting 5 U.S.C. § 552(a)(1)(D). 46 U.S. Telecom Ass’n v. FCC, 400 F.3d 29, 34-5, 38 (D.C. Cir. 2005) (rejecting FCC’s claim that it merely had provided “clarifications” of an existing rule, and concluding that the FCC’s substantive changes to its preexisting rule “can be valid only if it satisfies the notice-and- comment requirements of the APA”). 47 47 U.S.C. § 312(a)(7). 15 expectations; and (3) the character of the governmental action.”48 Forcing broadcasters to surrender their valuable airtime to anyone “authorized” by a candidate directly interferes with broadcasters’ business model and forces them to bear costs that should be borne by others. The government cannot do so without providing just compensation. U.S. Const., amend. V, cl. 4. A station’s position under the “no censorship” policy of Section 315(a) of the Act may be even more precarious. Under that provision, a broadcaster cannot censor the message of a candidate and, by Supreme Court precedent,49 it cannot be held liable for any content contained in that ad, including defamatory statements. As the Notice does not address the no censorship provision, stations are left in an untenable position when faced with a claim that an “authorized” ad is defamatory. The station either assumes that the ad is treated like a candidate ad and not censor its message (and risk liability should a court determine that, because Section 315(a) does not mention “authorized” ads, the broadcaster can in fact censor such ads) or the broadcaster can reject the ad to avoid civil liability and face penalties should the FCC determine that these “authorized” ads are treated like candidate ads for all purposes. The silence of the Notice on these significant matters is deafening – and would likely not exist if the Commission had gone through its normal process for considering important policy changes. The FCC cannot adopt such changes in the manner it did and leave those subject to the regulations at the mercy of the uncertain implications of its actions. “‘[R]ules is rules,’ no matter their gloss.”50 And the Public Notice assuredly announced “rules” – new requirements that 48 Murr v. Wisconsin, 582 U.S. 383, 393 (2017) (citations omitted). 49 Farmers Educ. & Coop., Union of America, North Dakota Div. v. WDAY, 360 U.S. 525, 535 (1959). 50 Safari Club, 878 F.3d at 332, quoting Nat’l Ass’n of Home Builders v. U.S. Army Corps of Eng’rs, 417 F.3d 1272, 1284-85 (D.C. Cir. 2005). 16 substantially broadened the FCC’s existing LUC rule. Accordingly, the FCC should repeal the Notice as contrary to the APA. V. THE LUC PROVISIONS ARE CONTRARY TO THE FIRST AMENDMENT AND THE NOTICE’S SUBSTANTIAL EXPANSION OF THEM EXACERBATES THEIR UNCONSTITUTIONALITY The Media Bureau’s expansion of its LUC rule to seemingly unlimited third parties further highlights why its LUC rule in 47 C.F.R. § 73.1942 and the underlying statutory provisions in 47 U.S.C. § 315(b)(1) violate the First Amendment. The FCC should not continue to enforce its unconstitutional LUC rule and should abrogate the Notice’s new, additional LUC requirements that exacerbate the rule’s unconstitutionality. A. The LUC Provisions Cannot Withstand First Amendment Scrutiny The pre-existing LUC rule, the new LUC requirements, and the underlying statute are, on their face, content-based and speaker-based restrictions subject to strict First Amendment scrutiny, under which the government must prove that they further a compelling interest and are narrowly tailored.51 Neither the Bureau nor the Commission can make those showings. The existing and expanded LUC requirements and Section 315(b)(1) are textbook content- and speaker-based regulations. They apply to (i) specific content, i.e., speech “in connection with” a legally qualified candidate’s campaign for nomination/election for public office and now ads that qualify as coordinated expenditures of political parties and legally qualified candidates for federal office; and (ii) specific persons or entities, i.e., “legally qualified candidates” and their “authorized committees,” now including an expanded range of joint and hybrid political committees and PACs. The rules and statute are “content based on [their] face,” and “subject to strict scrutiny regardless of the government’s benign motive [or] content neutral 51 Reed v. Town of Gilbert, 576 U.S. 155, 163, 170-171 (2015). 17 justification.”52 Even apart from the content- and viewpoint-based nature of the rules and statute, these provisions impermissibly intrude on broadcasters’ own speech and programming decisions. The Notice cited zero grounds for the FCC’s existing or additional regulation of political speech, and the LUC rules and their underlying statutory requirements accordingly fail strict (or other) First Amendment scrutiny. That omission is especially glaring given that the “First Amendment ‘has its fullest and most urgent application precisely to the conduct of campaigns for political office.’”53 The Supreme Court has recognized “only one permissible ground for restricting political speech: the prevention of ‘quid pro quo’ corruption or its appearance,” and has consistently rejected other governmental aims, “[h]owever well intentioned,” including “reduc[ing] the amount of money in politics” or “level[ing] electoral opportunities by equalizing candidate resources.”54 Thus, the Court has already rejected as insufficient bases for justifying political speech regulation interests very similar to those that the LUC statutory provisions and rules were intended to promote.55 The FCC’s discriminatory regulatory regime does nothing to prevent “quid pro quo” corruption or to further any other legitimate governmental interest. 52 Reed, 576 U.S. at 165. 53 FEC v. Cruz, 596 U.S. 289, 302 (2022) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)). 54 Id. at 305, citing McCutcheon v. FEC, 572 U.S. 185, 191 (2014) and Arizona Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 749-50 (2011). 55 Congress passed FECA, which amended Section 315(b) of the Act to include a new LUC provision, as a “comprehensive approach to the problem of political campaign reform and excessively high campaign costs.” S. Rep. No. 96, 92d Cong., 1st Sess. 33 (1971). FECA’s provisions limited campaign contributions and imposed spending limits on federal candidates/campaigns, while trying to lower campaign costs through provisions such as the LUC. The Supreme Court quickly found many of FECA’s provisions, including the campaign spending limits, unconstitutional. See Buckley v. Valeo, 424 U.S. 1 (1976); Citizens United v. FEC, 558 U.S. 310 (2010); McCutcheon v. FEC; NRSC v. FEC (pending). Given that candidates are not subject to spending limits, the government’s interest in and rationale for maintaining the related content- and speaker-based speech regulations in Section 315(b)(1) has disappeared. Candidates, moreover, do not lack access to a wide range of media outlets today, many of which did not exist in 1971 when FECA was enacted, and they can now reach the public directly without the intermediation of the traditional media at all. 18 The FCC’s regime also effectively compels broadcasters to subsidize certain government- favored speakers and speech via the LUC.56 “Just as the First Amendment may prevent the government from prohibiting speech,” it “may prevent the government from compelling individuals . . . to pay subsidies for speech to which they object.”57 Broadcasters’ editorial right to choose programming is protected speech,58 and the proliferation of “authorized” committee ads and coordinated party/candidate ads would substantially increase the amount of programming content over which broadcasters are deprived of their right to choose or even to decline to subsidize.59 The FCC at the least must reverse the recent significant expansion of its discriminatory LUC regulatory regime. Rather than addressing (or even acknowledging) the First Amendment problems inherent in its regime, the Bureau only exacerbated its unconstitutionality by announcing new content- and speaker-based regulations of speech. The FCC’s existing LUC rule is unconstitutional on its face. But, at a minimum, its substantial expansion to all manner of committees and political party expenditures violates the First Amendment. The FCC should 56 “Mandating speech that a speaker would not otherwise make necessarily alters the content of the speech.” Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 795 (1988). Freedom of speech “includes both the right to speak freely and the right to refrain from speaking at all,” Janus v. Am. Fed’n of State, Cnty. & Mun. Emps., Council 31, 585 U.S. 878, 892 (2018) (citation omitted), and extends “not only to expressions of value, opinion, or endorsement, but equally to statements of fact the speaker would rather avoid.” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 573 (1995). 57 U.S. v. United Foods, 533 U.S. 405, 410 (2001). “Any regulation that compels the funding of advertising must be subjected to the most stringent First Amendment scrutiny.” (Thomas, J., concurring). Id. at 419. 58 When a “broadcaster exercises editorial discretion in the selection and presentation of programming, it engages in speech activity.” Ark. Educ. TV Comm’n v. Forbes, 523 U.S. 666, 674 (1998). 59 See 47 U.S.C. § 315(a); 47 C.F.R. § 73.1941(a) (providing that licensees “shall have no power of censorship over the material broadcast” by legally qualified candidates using a broadcast station). 19 comport with the basic tenet – “which has for so long been applied by th[e] [Supreme] Court that it is beyond debate” – that statutes should be construed to avoid constitutional questions.”60 In addition to the First Amendment failings identified above, the expansion of the LUC regime cannot even meet the threshold question – under any constitutional standard – of whether the government has established that it is preventing an actual harm by its speech regulation. When defending a speech restriction, the government “must do more than simply posit the existence of the disease sought to be cured. It must instead point to record evidence or legislative findings demonstrating the need to address a special problem.”61 The courts have “never accepted mere conjecture as adequate to carry a First Amendment burden.”62 The Bureau did not and cannot point to a single instance in the (nonexistent) record showing that expanding the discriminatory LUC regime is needed to prevent some (unidentified) harm. And because there is no actual, identified problem to be solved, there is by definition no compelling (or even substantial) governmental interest justifying the newly expanded LUC requirements. Relatedly, the FCC also cannot show that its new LUC requirements are narrowly tailored.63 Given that the expansive LUC rules now apply to any committees that might be labeled as “authorized” and to a potentially vast range of coordinated party/candidate ads, they likely will impact “substantially more speech than is necessary” to further any interest the FCC might assert.64 At the very least, 60 Jones v. U.S., 526 U.S. 227, 239-40 (1999). 61 FEC v. Cruz, 596 U.S. at 307 (internal quotation marks and citations omitted). 62 Id. (internal quotation marks and citations omitted). 63 Strict scrutiny requires the FCC to “advance the State’s compelling interest through the least restrictive means,” Williams-Yulee v. Fla. Bar, 575 U.S. 433, 452 (2015), and even under intermediate scrutiny, a speech regulation must be shown to alleviate a real harm “in a direct and material way.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994). 64 McCullen v. Coakley, 573 U.S. 464, 486 (2014) (citation omitted). Given the discriminatory treatment favoring certain ads of candidates/committees/parties under the Notice, these ads could rapidly proliferate to fill stations’ advertising airtime to the detriment (or even exclusion) of other political and commercial advertisers. The FCC has no basis for exacerbating the harms that other speakers will suffer under its amended LUC regime. 20 then, the FCC must abrogate the Notice and confirm that the LUC rule only applies to ads paid for by a legally qualified candidate or its designated principal campaign committee. B. Broadcasting Is Entitled To Full First Amendment Protections The FCC’s LUC rule and the underlying statutory provision violate the First Amendment under any plausible standard. But to the extent the Notice assumes that broadcasters only enjoy reduced First Amendment protections based on the alleged “scarcity” of spectrum cited in Red Lion and its progeny,65 this position should be rejected. The theory of scarcity has been well and truly debunked. When determining in 1987 to no longer enforce the fairness doctrine as contrary to the First Amendment, the Commission found that “there is no longer a scarcity in the number of broadcast outlets” available to the public.66 More significantly, the Commission concluded that the “concept of scarcity – be it spectrum or numerical – is irrelevant” to determining the appropriate First Amendment standard to apply to broadcasting and that the scarcity rationale developed in Red Lion and successive cases “no longer justifies a different standard of First Amendment review for the electronic press.”67 Beyond the Commission, the scarcity rationale has been found to be no longer applicable, economically and scientifically incorrect, and inappropriate for grounding a constitutional rule that affords broadcasting lesser First Amendment protection. When enacting the 1996 Telecommunications Act, Congress found that the “scarcity rationale for government regulation [of broadcasting] no longer applies.”68 Circuit court of appeal judges have pointed 65 Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) (upholding the fairness doctrine as lawful and applying a different First Amendment standard to broadcasting because spectrum was a scarce resource). 66 In re Syracuse Peace Council against Television Station WTVH Syracuse, NY, 2 FCC Rcd 5043, 5054 (1987), aff’d, Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C. Cir. 1989). 67 Id. at 5052, 5055. 68 H.R. Rep. No. 104-204, at 54 (1995) (citing “significant changes” in audio and video marketplace). 21 out that “[a]ll economic goods are scarce,” and as a “universal fact,” scarcity “can hardly explain regulation in one context” (i.e., broadcasting) and “not another” (i.e., print).69 Judges have noted the “absurdity of this bifurcated approach” to content-based regulation of the media,70 which permits regulation of broadcasting that would be “intolerable” if applied to other media.71 Unsurprisingly, the Supreme Court acknowledged criticism of the scarcity rationale as early as the mid-1980s.72 The Court has since declined to extend the lesser standard of First Amendment protection applied to broadcasters to any other electronic media, including telephone dial-in services, cable TV, and the internet.73 Notably, Supreme Court Justices and circui