第四巡回法院撤销FCC扩大政治广告最低单价适用范围的指引，地方电视台政治广告折扣义务收窄

USCA4 Appeal: 26-1785 Doc: 66 Filed: 08/25/2026 Pg: 1 of 69 PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 26-1785 SHERROD BROWN; JON OSSOFF; ROY A. COOPER, III; KRISTEN MCDONALD RIVET, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES OF AMERICA, Respondents, and NATIONAL REPUBLICAN CONGRESSIONAL COMMITTEE; NATIONAL REPUBLICAN SENATORIAL COMMITTEE, Intervenors. ------------------------------- CAMPAIGN LEGAL CENTER, Amicus Supporting Petitioners, and NATIONAL MEDIA RESEARCH, PLANNING & PLACEMENT; SMART MEDIA GROUP; AND FLEXPOINT MEDIA, Amicus Supporting Respondents. USCA4 Appeal: 26-1785 Doc: 66 Filed: 08/25/2026 Pg: 2 of 69 On Petition for Review of a Decision of the Federal Communications Commission. (DA 26-300) Argued: August 7, 2026 Decided: August 25, 2026 Before WILKINSON, KING, and WYNN, Circuit Judges. Petition for review granted by published opinion. Judge King wrote the majority opinion, in which Judge Wynn joined. Judge Wynn wrote a concurring opinion. Judge Wilkinson wrote a dissenting opinion. ARGUED: David Robert Fox, ELIAS LAW GROUP LLP, Washington, D.C., for Petitioners. Scott M. Noveck, FEDERAL COMMUNICATIONS COMMISSION, Washington, D.C., for Respondents. Thomas Ryan McCarthy, CONSOVOY MCCARTHY PLLC, Arlington, Virginia, for Intervenors. ON BRIEF: Richard A. Medina, Nicole E. Wittstein, ELIAS LAW GROUP LLP, Washington, D.C., for Petitioners. Sharon Swingle, Jennifer Utrecht, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; D. Adam Candeub, General Counsel, Jacob M. Lewis, Deputy General Counsel, Sarah E. Citrin, Deputy Associate General Counsel, FEDERAL COMMUNICATIONS COMMISSION, Washington, D.C., for Respondents. David L. Rosenthal, Conor D. Woodfin, CONSOVOY MCCARTHY PLLC, Arlington, Virginia, for Intervenors. Tara Malloy, Erin Chlopak, Saurav Ghosh, Shanna Ports, CAMPAIGN LEGAL CENTER, Washington, D.C., for Amicus Campaign Legal Center. Erin Morrow Hawley, John S. Ehrett, LEX POLITICA PLLC, Washington, D.C., for Amici National Media Research, Planning & Placement; Smart Media Group; and Flexpoint Media. 2 USCA4 Appeal: 26-1785 Doc: 66 Filed: 08/25/2026 Pg: 3 of 69 KING, Circuit Judge: This time-sensitive matter concerns who is entitled to particularly favorable rates — known as the “lowest unit charge,” or “LUC” — for broadcast campaign advertisements in the run-up to elections. The statutory LUC requirement provides that during the 45-day period preceding a primary election and the 60-day period preceding a general election, “[t]he 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” must be at “the lowest unit charge of the station for the same class and amount of time for the same period.” See 47 U.S.C. § 315(b)(1)(A). There is no question that candidates are entitled to the LUC. But it is disputed whether political parties and joint fundraising committees with non-candidate members can also be entitled to the LUC. The Federal Communications Commission (the “FCC,” or the “Commission”) has asserted that they can, saying so in a “Public Notice” issued by the FCC’s Media Bureau on March 30, 2026. The Petition for Review before us challenges the Public Notice, which takes effect on September 4, 2026, for the impending November general election. The four petitioners, all Democrats, are U.S. House of Representatives candidate Kristen McDonald Rivet of Michigan and U.S. Senate candidates Sherrod Brown of Ohio, Jon Ossoff of Georgia, and Roy Cooper of North Carolina (collectively, the “Federal Candidates”). Their contention is that the Public Notice contravenes the plain language of the LUC requirement and pertinent campaign finance statutes. In the Federal Candidates’ words, the Public Notice “unlawfully dilutes [their] and other candidates’ statutory right to buy advertising time at 3 USCA4 Appeal: 26-1785 Doc: 66 Filed: 08/25/2026 Pg: 4 of 69 lowest unit charge by insisting that broadcasters make that same right available to political parties and joint fundraising committees in circumstances where their spending cannot, under campaign finance law, be considered spending by or on behalf of a candidate.” See Reply Br. of Pet’rs 1. On the other side of this dispute are the FCC, as a respondent, and the National Republican Congressional Committee and the National Republican Senatorial Committee (together, the “Party Committees”), as intervenors. The FCC and the Party Committees separately — but similarly — argue both that we lack jurisdiction to review the Public Notice and that the Public Notice is correct on the merits.1 As explained herein, we are confident of our jurisdiction to review the Public Notice. Further, we conclude that the LUC requirement and campaign finance statutes are clear that neither political parties nor joint fundraising committees with non-candidate members can be entitled to the LUC. We therefore grant the Petition for Review, such that we set aside and hold for naught the Public Notice. I. As background, the FCC’s Media Bureau was acting pursuant to its delegated authority2 when, on March 30, 2026, it issued the Public Notice, titled “FCC Media Bureau 1 We note that the United States is also a respondent, shares counsel with the FCC, and joins in the FCC’s arguments opposing the Petition for Review. 2 In March 2002, the FCC established the Media Bureau by reorganizing the existing Cable Services and Mass Media Bureaus into a new entity. See 47 C.F.R. § 0.61. In doing (Continued) 4 USCA4 Appeal: 26-1785 Doc: 66 Filed: 08/25/2026 Pg: 5 of 69 Provides Guidance on Entitlement to Lowest Unit Charge for Legally Qualified Candidates for Federal Office and All Authorized Committees.” See J.A. 1.3 At its outset, the Public Notice specifies that the LUC requirement applies to the following: (1) “authorized committees, including authorized committees that engage in joint fundraising with legally qualified candidates for federal office”; and (2) “advertisements that qualify as coordinated expenditures of political parties and legally qualified candidates for federal office.” Id. The Public Notice poses as a “remind[er]” of the LUC requirement and purports to merely “restate previous Media Bureau guidance regarding LUC eligibility.” Id. at 1-2. Significantly, however, the Public Notice identifies no previous Media Bureau guidance stating that political parties and joint fundraising committees with non-candidate members can ever be entitled to the LUC. A. On April 29, 2026, before filing their Petition for Review in this Court, the Federal Candidates filed an Application for Review with the FCC (the “Application for FCC Review,” or the “Application”).4 Seeking to have the full Commission set aside the Media so, the FCC expressly delegated to the Media Bureau the authority to “[a]dminister and enforce rules and policies regarding political programming and related matters.” Id. § 0.61(e); see also 47 U.S.C. § 155(c)(1) (authorizing FCC to delegate authority). 3 Citations herein to “J.A. __” refer to the contents of the Joint Appendix filed by the parties in this matter, which is wholly comprised of the two-page Public Notice. 4 The Application for FCC Review is an exhibit to the Federal Candidates’ Petition for Review in this Court. See Brown v. FCC, No. 26-1785, Ex. B (4th Cir. June 22, 2026), ECF No. 3. 5 USCA4 Appeal: 26-1785 Doc: 66 Filed: 08/25/2026 Pg: 6 of 69 Bureau’s Public Notice, the Application contests the Public Notice’s claim that it merely reiterates well-settled principles. The Application argues that the Public Notice instead constitutes a novel interpretation of the LUC requirement that is incompatible with the relevant statutes and directly contradicted by FCC and other precedents. The Application also addresses how the Public Notice aggrieves the Federal Candidates, explaining that they are in “highly competitive” races for U.S. House and Senate seats being targeted by the Party Committees; that the Party Committees are expected to heavily spend on advertisements opposing the Federal Candidates and supporting their opponents, “including through coordinated expenditures and [joint fundraising committee] advertising”; and that by requiring broadcasters to extend the LUC to political parties and joint fundraising committees for such advertisements, the Public Notice “places [the Federal Candidates] at a competitive disadvantage, forcing them to respond to a higher volume of the counter advertisements than otherwise could have been purchased at the same price point, and diluting their independent campaign messaging.” See Application for FCC Review 18-19. Twice, the Application urges an expedited decision by the Commission given the impending November general election. In its introduction, the Application emphasizes that “[e]xpedited action by the Commission is essential.” See Application for FCC Review at iv. And in closing, the Application reiterates that “urgent action by the Commission is needed” and that “[t]he Commission should therefore expedite this matter and promptly set aside the [Public Notice].” Id. at 19. 6 USCA4 Appeal: 26-1785 Doc: 66 Filed: 08/25/2026 Pg: 7 of 69 Nevertheless, in the months that followed, the Commission took no action whatsoever on the Application for FCC Review. B. Given the looming November general election, the Federal Candidates turned to this Court in late June 2026, filing their Petition for Review and successfully moving to expedite our proceedings. The FCC promptly responded with a still-pending motion to dismiss the Petition for Review for lack of jurisdiction, principally contending that there can be no judicial review of the Public Notice until the Commission issues a decision on the Application for FCC Review. The FCC’s subsequent response brief repeats that jurisdictional contention and also defends the Public Notice on the merits, with support from the Party Committees’ response brief and opposition from the Federal Candidates’ opening and reply briefs. Following briefing, the parties further aired their positions at an oral argument, conducted during a special sitting of our Court on August 7, 2026, in Richmond. Notably, in support of its jurisdictional contention, the FCC has emphasized the importance of awaiting the Commission’s decision on the Federal Candidates’ Application so that this Court will have the benefit of the Commission’s expertise. That is, the FCC has contended that even if we could go ahead with a review of the Public Notice, we should allow the Commission to have the first say on the Public Notice’s merits. At the same time, the FCC’s counsel — speaking for the Commission and the United States — has insisted that the Public Notice is correct. 7 USCA4 Appeal: 26-1785 Doc: 66 Filed: 08/25/2026 Pg: 8 of 69 C. With this matter poised for our decision, the FCC notified us on August 17, 2026, that there has at last been some action on the Application for FCC Review. Specifically, the FCC advised that its Chairman had circulated a proposed order to his fellow Commissioners three days earlier that — rather than passing on the Public Notice’s merits — would dismiss the Federal Candidates’ Application as an “improper vehicle” for the Commission’s review of the Public Notice. See Brown v. FCC, No. 26-1785 (4th Cir. Aug. 17, 2026), ECF No. 63, at 1 (FCC’s letter to this Court under Federal Rule of Appellate Procedure 28(j)). According to the FCC, the Chairman’s proposed order is premised on the notion that the Public Notice merely restates previous Media Bureau guidance, such that the Application would have the Commission improperly “revisit[] existing law on the eve of an election, after primaries have occurred and plans have been made for the general election based on the existing rules.” Id. Additionally, the FCC proffered a recent order of the Media Bureau denying a petition of the Television Bureau of Advertising, Inc. (“TVB”), for reconsideration of the Public Notice. See In re Entitlement to Lowest Unit Charge for Legally Qualified Candidates for Federal Office and All Authorized Committees, DA 26-851, Order on Reconsideration (FCC Aug. 13, 2026). Sticking with the characterization of the Public Notice as a reiteration of previous guidance, the Media Bureau’s order asserts that “[s]uch a reminder is not a decision or action that can be challenged through a petition for reconsideration.” Id. at 1. Once again, however, the Media Bureau failed to identify any previous guidance stating that political parties and joint fundraising committees with non- 8 USCA4 Appeal: 26-1785 Doc: 66 Filed: 08/25/2026 Pg: 9 of 69 candidate members can be entitled to the LUC. Instead, the order only vaguely references prior “response[s] to informal inquiries from regulated parties.” Id. at 2. As the FCC would have it, the foregoing developments — the FCC Chairman’s proposed order dismissing the Federal Candidates’ Application, along with the Media Bureau’s order denying TVB’s reconsideration petition — bolster the FCC’s contention that judicial review of the Public Notice cannot be had. In response, the Party Committees concur that this “Court lacks jurisdiction to review the Public Notice” as “a reminder of longstanding guidance.” See Brown v. FCC, No. 26-1785, at 1 (4th Cir. Aug. 18, 2026), ECF No. 64 (Party Committees’ response to FCC’s Rule 28(j) letter). For their part, the Federal Candidates maintain that “[t]he existence of a draft proposed order denying [their Application for FCC Review] confirms additional agency review is futile,” as does “[t]he Media Bureau’s denial of TVB’s reconsideration petition.” See Brown v. FCC, No. 26-1785, at 1 (4th Cir. Aug. 19, 2026), ECF No. 65 (Federal Candidates’ response to FCC’s Rule 28(j) letter). Additionally, the Federal Candidates underscore that the new developments confirm that the FCC’s “merits argument is weak.” Id. The Federal Candidates urge us to proceed with reviewing the Public Notice, while advising that they “will file a second, protective Petition for Review” if the full Commission agrees to an order disposing of their Application. Id. at 2. 9 USCA4 Appeal: 26-1785 Doc: 66 Filed: 08/25/2026 Pg: 10 of 69 II. In these circumstances, we are confident of our jurisdiction to review the Public Notice.5 That is, we possess jurisdiction under 28 U.S.C. § 2342(1) (conferring “exclusive jurisdiction” on the courts of appeals “to enjoin, set aside, suspend (in whole or in part), or to determine the validity of . . . all final orders of the Federal Communications Commission made reviewable by [47 U.S.C. § 402(a)]”). We proceed to explain why the Public Notice constitutes a “final” order “of the Commission” that has been “made reviewable by § 402(a).” Notably, our analysis involves the conclusion that, by its conduct, the Commission has constructively denied the Application for FCC Review and thereby adopted the Public Notice. A. We begin with why the Public Notice has been “made reviewable by § 402(a).” Under § 402(a), proceedings to “enjoin, set aside, annul, or suspend any order of the Commission” must be “brought as provided by and in the manner prescribed in [28 U.S.C. §§ 2341-2351].” In turn, § 2342(1) accords our Court “exclusive jurisdiction” to review “all final orders” of the Commission. Section 2342 also provides that “[j]urisdiction is invoked by filing a petition as provided by section 2344.” For its part, § 2344 sets forth two steps to invoke jurisdiction: (1) the agency provides notice of entering a final order, 5 Having assured ourselves that we possess jurisdiction to review the Public Notice, we hereby deny the FCC’s motion to dismiss the Petition for Review. 10 USCA4 Appeal: 26-1785 Doc: 66 Filed: 08/25/2026 Pg: 11 of 69 and (2) an aggrieved party files a petition to review the order within 60 days of the order’s entry. Here, the Media Bureau published its Public Notice on March 30, 2026, starting the 60-day clock for invoking our jurisdiction. See 47 C.F.R. §§ 1.103(b), 1.4(b)(4) (explaining that Commission action taken under delegated authority is final, “for purposes of seeking . . . judicial review,” on “the date on which the descriptive ‘Public Notice’ is released”). And because the Federal Candidates filed their Petition for Review before § 2344’s 60-day deadline expired, they properly invoked our jurisdiction.6 B. Next, we explain why the Public Notice is, and always has been, an order “of the Commission.” The Commission is entitled to “delegate any of its functions . . . to a panel of commissioners, an individual commissioner, an employee board, or an individual employee, including functions with respect to hearing, determining, ordering, certifying, reporting, or otherwise acting as to any work, business, or matter.” See 47 U.S.C. § 155(c)(1). And an order made under such delegation has “the same force and effect” as orders of the Commission. Id. § 155(c)(3). Relevant here, the Media Bureau “acts for the Commission under delegated authority” when it “administer[s] and enforce[s] rules and policies regarding political programming and related matters.” See 47 C.F.R. § 0.61(e) 6 Because the Federal Candidates timely filed the Petition for Review, we need not decide whether § 2344’s 60-day deadline is jurisdictional. We observe, however, that the 60-day deadline is more akin to a “nonjurisdictional rule[] govern[ing] how courts and litigants operate within” the bounds of our “adjudicatory authority.” See Santos-Zacaria v. Garland, 598 U.S. 411, 416 (2023); cf. Harrow v. Dep’t of Def., 601 U.S. 480 (2024). 11 USCA4 Appeal: 26-1785 Doc: 66 Filed: 08/25/2026 Pg: 12 of 69 (citation modified). Thus, from the start, the Public Notice was an order of the Commission. And of course, now that the Commission has constructively denied the Application for FCC Review and thereby adopted the Public Notice, it remains an order of the Commission. C. 1. Finally, we explain why the Public Notice is, and always has been, a “final” order. In doing so, we first recognize that the Public Notice was “final” upon issuance by the Media Bureau and remained so after the Federal Candidates filed their Application for FCC Review. When determining whether an order is final, “courts should take as their NorthStar the unique constellation of statutes and regulations that govern the action at issue.” See Cal. Cmtys. Against Toxics v. EPA, 934 F.3d 627, 631 (D.C. Cir. 2019). Pursuant to the statutes governing here, an otherwise final order of the Commission, made under delegated authority, becomes nonfinal when the order is “reviewed as provided in [47 U.S.C. § 155(c)(4)].” See 47 U.S.C. § 155(c)(3). Section 155(c)(4) provides a two-step review process: (1) an aggrieved party files an application for review, and (2) the application is “passed upon by the Commission.” So only when review is completed, not merely begun, does an order made under delegated authority become nonfinal. See Cawthorn v. Amalfi, 35 F.4th 245, 258 (4th Cir. 2022) (“The past tense is ‘backward-looking’; it refers to things that have already happened, not those yet to come.”); Participles Generally, Chicago 12 USCA4 Appeal: 26-1785 Doc: 66 Filed: 08/25/2026 Pg: 13 of 69 Manual of Style § 5.114 (“The past participle denotes the verb’s action as being completed.”). Indeed, the FCC’s own regulations contemplate the completion of both steps. See 47 C.F.R. § 1.102(b)(3) (“If an application for review of a non-hearing or interlocutory action is filed . . . the Commission may in its discretion stay the effect of any such action until its review of the matters at issue has been completed.” (emphasis added)); cf. id. § 1.102(a)(3) (explaining that, for final actions following review of an initial decision, an application for review automatically stays “the effect of the decision” until the Commission completes its review); see also id. § 1.102(b)(1) (“Non-hearing or interlocutory actions taken pursuant to delegated authority shall . . . be effective upon release of the document containing the full text of such action, or in the event such a document is not released, upon release of a public notice announcing the action in question.”). Thus, although the Federal Candidates filed the Application, the Public Notice remained final pending completion of the review process.7 2. In any event, the Public Notice is a “final” order because the Commission, through its own actions — and inaction — has since constructively denied the Application for FCC Review and adopted the Public Notice. Our Court and other courts of appeals have made 7 Concluding otherwise would create a “Catch-22 situation” where the filing of an application for review strips the order of finality for purposes of judicial review but not for the effect of the order itself. Here, the Public Notice would go into effect on September 4, 2026, regardless of whether the Commission had passed upon the Federal Candidates’ Application before then. Such a situation is necessarily illogical and intolerable. 13 USCA4 Appeal: 26-1785 Doc: 66 Filed: 08/25/2026 Pg: 14 of 69 it clear that “when administrative inaction has precisely the same impact on the rights of the parties as denial of relief, an agency cannot preclude judicial review by casting its decision in the form of inaction rather than in the form of an order denying relief.” See Env’t Def. Fund, Inc. v. Hardin, 428 F.2d 1093, 1099 (D.C. Cir. 1970) (citing Deering Milliken, Inc. v. Johnston, 295 F.2d 856 (4th Cir. 1961)). In this regard, our Court has ruled that “a denial of a request need not be explicit, but rather may be treated as a ‘constructive’ denial based on the decision maker’s conduct.” See Scoggins v. Lee’s Crossing Homeowners Ass’n, 718 F.3d 262, 271-72 (4th Cir. 2013) (recognizing that a denial of relief may be “actual or constructive, as an indeterminate delay has the same effect as an outright denial”). The present circumstances readily constitute a constructive denial. When the Federal Candidates initiated this action on June 22, 2026, their Application for FCC Review was pending with the Commission for approximately two months. When we conducted our oral argument earlier this month, the Application was pending for 100 days. On September 4 — the date the LUC requirement becomes effective for the impending November election — it will be 128 days since the Federal Candidates filed their Application. 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. 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. 14 USCA4 Appeal: 26-1785 Doc: 66 Filed: 08/25/2026 Pg: 15 of 69 Meanwhile, at our oral argument, the FCC’s lawyer admitted — with commendable candor — that “it is very unlikely that the Commission will act here before September 4th.” See Oral Argument at 49:49-50:12, Brown v. FCC, No. 26-1785 (4th Cir. Aug. 7, 2026). Concomitantly, the lawyer also represented to this Court that there would be value in awaiting the Commission’s decision on the Public Notice’s merits and that the Public Notice is, in any event, absolutely correct. Ten short days later, the Commission finally took some action on the Federal Candidates’ Application. But that action had nothing to do with assessing the merits of the Public Notice either by September 4, 2026, or ever. Rather, the FCC Chairman proposed the summary dismissal of the Application as unreviewable by the Commission. In these unusual circumstances, we are satisfied that the Commission has constructively denied the Application for FCC Review and thereby adopted the Public Notice. Cf. Friedman v. FAA, 841 F.3d 537, 542-43 (D.C. Cir. 2016) (finding constructive denial where the FAA “placed [the applicant] in a holding pattern” by refusing to issue a formal decision). The Public Notice is “final” for this reason.8 3. The Public Notice also constitutes a “final” order because it is — in both substance and operation — a legislative rule, meaning that the Public Notice is necessarily the law of 8 Given that the Commission has effectively adopted the Public Notice, we need not wade into the parties’ dispute as to whether the only statutory precondition to filing the Petition for Review was first filing the Application for FCC Review (as the Federal Candidates contend), or whether 47 U.S.C. § 155(c)(7) permits judicial review only after the Commission has ruled on the Application (as the FCC argues). 15 USCA4 Appeal: 26-1785 Doc: 66 Filed: 08/25/2026 Pg: 16 of 69 the land and final. As then-Judge Kavanaugh explained in National Mining Association v. McCarthy, agency action that purports to impose legally binding obligations or prohibitions on regulated parties — and that would be the basis for an enforcement action for violations of those obligations or requirements — is a legislative rule. See 758 F.3d 243, 251 (D.C. Cir. 2014). A legislative rule, sometimes also called a substantive rule, must be distinguished from an interpretive rule. An interpretive rule “simply state[s] what the administrative agency thinks the statute means, and only remind[s] affected parties of existing duties,” or otherwise “clarif[ies] or expl[ains] . . . an existing statute or rule.” See Children’s Hosp. of the King’s Daughters, Inc. v. Azar, 896 F.3d 615, 620 (4th Cir. 2018) (citation modified). In that regard, although the Public Notice purports to merely “remind broadcasters and the public about the FCC’s lowest unit charge . . . requirements,” see J.A. 1, our Court has long emphasized that whether an agency’s rule is “substantive” or “interpretative” is a pragmatic inquiry; it does not depend on the agency’s self-serving characterizations of the same. See Jerri’s Ceramic Arts, Inc. v. Consumer Prod. Safety Comm’n, 874 F.2d 205, 207 (4th Cir. 1989) (recognizing that an agency’s “characterization of its statement as an exposition of its policy or interpretation of the standard does not preclude our finding that it is something more”). Even a passing review of the Public Notice reveals that it is a legislative rule and is thus necessarily final. As discussed infra, this Public Notice, at minimum, “supplements a statute,” “adopts a new position [that is] inconsistent with existing regulations,” and otherwise “effects a substantive change in existing law or policy.” See Children’s Hosp., 16 USCA4 Appeal: 26-1785 Doc: 66 Filed: 08/25/2026 Pg: 17 of 69 896 F.3d at 620 (citation modified). The Public Notice leaves broadcasters with “no choice but to comply” with its unlawful expansion of the LUC statute. See Br. of Pet’rs 34. And as the Public Notice emphasizes, the LUC is a requirement, such that noncompliance by a broadcaster carries with it hefty penalties — including fines, forfeitures, and rebates. See 47 U.S.C. § 503(b)(2)(A) (authorizing $25,000 per day penalty for violating LUC requirement). * * * In sum, we possess jurisdiction under 28 U.S.C. § 2342(1) to consider and resolve the Federal Candidates’ challenge to the Public Notice. That is because the Public Notice constitutes a “final” order “of the Commission” that has been “made reviewable by § 402(a).”9 9 In recognizing our jurisdiction, we also reject the FCC’s suggestion that the Federal Candidates lack Article III standing to challenge the Public Notice in federal court. Simply put, the Federal Candidates easily satisfy the requirements for Article III standing. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992) (explaining that Article III standing requires an injury-in-fact that is fairly traceable to the defendant’s conduct and that can be redressed by a favorable court decision). The Federal Candidates have established a cognizable injury-in-fact by alleging that the Public Notice unlawfully extends the LUC to joint fundraising committees and political parties, thereby reducing the cost of advertising against the Federal Candidates, increasing the volume of opposing advertising they must confront, and placing them at a competitive disadvantage. See Shays v. Fed. Election Comm’n, 414 F.3d 76, 86 (D.C. Cir. 2005) (recognizing that an injury arises when a candidate for federal public office “face[s] intensified competition” under an unlawful regulatory scheme, requiring the candidate to “anticipate and respond to a broader range of competitive tactics than federal law would otherwise allow”). Turning to traceability, there is a “causal connection” between the Media Bureau’s issuance of the Public Notice and the injuries alleged by the Federal Candidates. And finally, concerning the issue of redressability, we may award judicial (Continued) 17 USCA4 Appeal: 26-1785 Doc: 66 Filed: 08/25/2026 Pg: 18 of 69 III. Being satisfied that we possess jurisdiction, we turn to the merits of the Federal Candidates’ challenge to the Public Notice. And we conclude that, for purposes of entitlement to the LUC under 47 U.S.C. § 315(b)(1)(A), the term “candidate” means “candidate.” The Public Notice therefore unlawfully requires broadcasters to extend the LUC to political parties and joint fundraising committees with non-candidate members. A. As a threshold matter, we underscore that the legitimacy of the Public Notice turns on a question of pure statutory interpretation, and that our Court is obliged to “exercise [its own] independent judgment” in conducting that review. See Loper Bright Enters. v. Raimondo, 603 U.S. 369, 412 (2024). Put differently, it is “emphatically the province and duty of” our Court — not the FCC — “to say what the law is.” See id. (quoting Marbury v. Madison, 1 Cranch 137, 177 (1803)). Notably, parties on each side of this litigation have been accused of speaking with a forked tongue by advancing positions that are contrary to those they have previously taken. The Party Committees contend that one of the Federal Candidates, Sherrod Brown, has benefitted from the very interpretation of the LUC requirement that he now opposes. Specifically, they assert that Brown “benefitted from the application of the LUC rule to relief that would directly redress the Federal Candidates’ injury by setting aside the Public Notice. 18 USCA4 Appeal: 26-1785 Doc: 66 Filed: 08/25/2026 Pg: 19 of 69 [his] own candidate-party coordinated ads . . . in the 2024 election cycle during the World Series.” See Br. of Intervenors 9. The Federal Candidates assert an inconsistency in the FCC’s position, pointing to recent representations made to the Supreme Court by the United States Solicitor General in National Republican Senatorial Committee v. FEC. There, the Solicitor General stated that the LUC statute “require[s] broadcasters to charge low rates for candidate spending, but not for party spending — whether coordinated or independent.” See Reply Br. of Federal Resp’ts, Nat’l Republican Senatorial Comm. v. FEC, No. 24-621, 2025 WL 3068193, at *23 (U.S. Oct. 1, 2025). According to the Federal Candidates, the Solicitor General thus explicitly endorsed their view that political parties are not entitled to the LUC, even when their spending is coordinated with a candidate. In response to the hypocrisy accusations, both sides contend that such examples are being taken out of context and should hold no weight in assessing the Public Notice. We agree with the latter contention. We need not decide which, if either, party is guilty of speaking with a forked tongue to decide the merits of this dispute. Instead, we simply rely upon the plain text of the LUC requirement and pertinent campaign finance statutes. See United States v. George, 946 F.3d 643, 645 (4th Cir. 2020) (“When interpreting a statute, courts must first and foremost strive to implement congressional intent by examining the plain language of the statute.” (citation modified)). B. As recited previously, 47 U.S.C. § 315(b)(1)(A) grants the LUC only “for the use of any broadcasting station by any person who is a legally qualified candidate for any public 19 USCA4 Appeal: 26-1785 Doc: 66 Filed: 08/25/2026 Pg: 20 of 69 office in connection with his campaign.” See also 47 C.F.R. § 73.1942(a) (same). Given that simple statutory command, it was the FCC that recognized — approximately 35 years ago in 1991 — that “only candidates are entitled to [the] lowest unit charge benefits,” and that “independent entities” supporting or opposing candidates are not “entitled to the lowest unit charge.” See In re Codification of the Comm’ns Pol. Programming Pol’ys, 7 F.C.C. Rcd. 678, 685 ¶ 34 n.54, 686 ¶ 38 (1991) (emphasis added). The statutory text is unambiguous, and it provides no support for the Media Bureau’s significant and unilateral expansion of the LUC requirement. Indeed, “absent ambiguity or a clearly expressed legislative intent to the contrary, we apply the plain meaning of the statute.” See George, 946 F.3d at 645 (citation modified). And here, the pertinent legislative history is consistent with the LUC requirement’s plain language. Congress enacted the LUC requirement to address a growing “concern about” rate discrimination by broadcasters against candidates for federal office, as well as “the increasing cost[s] of election campaigns.” See Hernstadt v. FCC, 677 F.2d 893, 897 (D.C. Cir. 1980). Section 315(b)(1)(A) “regulat[es] rates charged political candidates” and was specifically “viewed [by Congress] as providing an additional break for candidates.” Id. It “was intended to ensure that, during the pre-election period, candidates would receive . . . volume and frequency discounts regardless of the number of announcements purchased.” Id. at 900. Moreover, as the Federal Candidates cogently explain, “[i]f Congress had wanted to extend lowest unit charge to party expenditures also, it easily could have said so when it first authorized coordinated expenditures a short two years after passing the lowest unit 20 USCA4 Appeal: 26-1785 Doc: 66 Filed: 08/25/2026 Pg: 21 of 69 charge requirement.” See Br. of Pet’rs 22. But Congress refrained from doing so, opting instead to limit the LUC requirement to avoid “imposing unreasonable and possibly economically devastating burdens on small stations.” See Hernstadt, 677 F.2d at 898. And when presented with an opportunity to amend the LUC requirement in 2010 and extend the LUC to political parties, Congress declined to do so. See, e.g., DISCLOSE Act, S. 3295, 111th Cong. § 401(a)(1)(c) (2010). C. 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. That has left the parties herein to debate whether party coordinated expenditures and spending by joint fundraising committees with non-candidate members involve “use . . . by” the candidate within the meaning of 47 U.S.C. § 315(b)(1)(A). 1. According to the FCC and the Party Committees, candidate “use” requires only that an advertisement be “authorized by” a candidate. See Br. of Resp’ts 43-44; Br. of Intervenors 24, 28. To resolve this question, we again turn to § 315(b)(1)(A)’s plain text. As a strict textual matter, equating “use” and “authoriz[ation]” makes little sense because “use” by a candidate, and mere “authoriz[ation]” for an advertisement by a candidate, are two distinct concepts. To “authorize” means to “give formal approval to; to sanction, approve, countenance” something done by someone else. See Authorize, Oxford English Dictionary (2d ed. 1989). Conversely, the term “use” requires “active 21 USCA4 Appeal: 26-1785 Doc: 66 Filed: 08/25/2026 Pg: 22 of 69 employment” by the user. See Bailey v. United States, 516 U.S. 137, 144 (1995). Thus, for someone else’s “use” to be the candidate’s “use,” it would not only have to be authorized by the candidate, but done on behalf of that candidate. And as discussed, the situations in which that can occur are strictly circumscribed by the pertinent campaign finance statutes. Consistent with the foregoing, the FCC has long understood that “use” by the candidate requires the candidate’s personal use, not his or her mere authorization of someone else’s use. For example, in its 1984 Political Primer, the FCC explained its position that “use” in § 315(b)(1) — and the accompanying entitlement to the LUC — “applie[s] only to the personal use of the radio facilities by the candidates themselves.” See Political Primer: Law of Political Broadcasting & Cablecasting, 100 F.C.C.2d 1476, ¶ 32 (1984) (quoting Felix v. Westinghouse Radio Stations, Inc., 186 F.2d 1, 3 (3d Cir. 1950)). Despite that standard, and the ever-changing landscape of pre-recorded negative and independent advertisements in our national political discourse, the Commission also confirmed in the 1990s that an opponent’s or outside group’s negative advertisements that use a candidate’s voice or picture to attack the candidate are not the targeted candidate’s “use.” See 1991 Political Programming Order, 7 F.C.C. Rcd. 678, 684 ¶ 30. Positive advertisements that are produced and distributed by “an independent entity,” are also not considered a candidate’s “use,” even if they “include[] an appearance by a candidate.” See In re Codification of Comm’n’s Pol. Programming Pol’ys, 7 F.C.C. Rcd. 4611, 4614 ¶ 23 (1992). 22 USCA4 Appeal: 26-1785 Doc: 66 Filed: 08/25/2026 Pg: 23 of 69 2. The question that yet remains is whether Congress included the two beneficiaries of the challenged Public Notice — that is, political parties engaged in coordinated expenditures and joint fundraising committees with non-candidate members — when it limited the LUC to “use . . . by” the candidate. See 47 U.S.C. § 315(b)(1)(A). For the following reasons, we are satisfied that Congress did not do so. a. Starting with political parties engaged in coordinated expenditures, such expenditures are not entitled to the LUC under § 315(b)(1)(A) because they are the political party’s use — not the candidate’s use. That conclusion flows from a commonsense and practical construction of the LUC requirement — a construction of the statutory provision that the FCC has affirmatively agreed with in the past. See 1992 Political Programming Order, 7 F.C.C. Rcd. 4611, 4614 ¶ 23 (recognizing that the FCC has “always held that only candidates or their authorized campaign committees are entitled to the LUC pursuant to [§] 315(b)” (emphasis added)). Restricting the LUC to candidates and their authorized committees makes good sense because the only way a third-party advertisement could be deemed as “use . . . by” the candidate is when the third-party acts on behalf of the candidate. And pursuant to 52 U.S.C. § 30101(6), a political committee may make expenditures “on behalf of” a candidate only if it is an “authorized committee” of that candidate. Because political parties support multiple candidates and therefore cannot be authorized committees of a particular candidate, id. § 30102(e)(3)(A), such parties cannot act “on behalf of” the 23 USCA4 Appeal: 26-1785 Doc: 66 Filed: 08/25/2026 Pg: 24 of 69 candidate so as to turn their spending into candidate “use.” To conclude otherwise would put the LUC requirement and the campaign finance statutes “at war with one another.” See Epic Sys. Corp. v. Lewis, 584 U.S. 497, 502 (2018) (“It is this Court’s duty to interpret Congress’s statutes as a harmonious whole rather than at war with one another.”). We are unpersuaded by the positions espoused by the FCC and the Party Committees. For its part, the FCC insists that its Public Notice “does not cover spending by the party in its own name after consultation with the candidate.” See Br. of Resp’ts 43. Yet that is precisely what party coordinated expenditures are — i.e., they are “the party’s expenditures on, for example, advertisements produced or distributed in consultation with a candidate’s campaign.” See Nat’l Republican Senatorial Comm. v. FEC, 146 S. Ct. 2404, 2413. We thus agree with the Federal Candidates’ assertion that “[i]t is unclear what, exactly, [the FCC] think[s] is entitled to [the] lowest unit charge as a party coordinated expenditure.” See Reply Br. of Pet’rs 31.10 10 To be sure, the FCC refers to a scenario where “a candidate and [a] political party’s national or state committees together purchase airtime for the campaign’s use.” See Br. of Resp’ts 2, 10. If the FCC is suggesting a situation in which a candidate pays part of an advertisement’s cost and the political party foots the bill for the rest, we agree with the Federal Candidates that the “analysis is simple.” See Reply Br. of Pet’rs 31. That is, “the candidate’s share is the candidate’s expenditure and therefore the candidate’s ‘use,’ while the party’s share is a party coordinated expenditure — ‘spending by the party in its own name after consultation with a candidate,’ which [the FCC] do[es] not defend as entitled to lowest unit charge.” Id. Alternatively, the FCC describes a scenario where a political party purchases airtime “to distribute to individual candidates for use as [the candidates] choose.” See Br. of Resp’ts 40. But that is belied by the Party Committees’ characterization of how party coordinated expenditures actually work in the real world: airtime is not transferrable in that way, and party coordinated expenditures involve the party itself placing orders and (Continued) 24 USCA4 Appeal: 26-1785 Doc: 66 Filed: 08/25/2026 Pg: 25 of 69 Meanwhile, the Party Committees support a different approach. According to the Party Committees, all “candidate-party coordinated [advertisements] are a candidate ‘use’” if the candidate “appear[s] in these [advertisements]” and authorizes a particular advertisement vis-à-vis the “stand by your ad” disclaimer that is required by 47 U.S.C. § 315(b)(2)(C). See Br. of Intervenors 24. But this defies the FCC’s own treatment of candidate authorization of an individual advertisement as insufficient to entitle an independent entity’s advertisement to lowest unit charge. See 1992 Political Programming Order, 7 F.C.C. Rcd. 4611, 4613-14 ¶ 23. That is, the FCC has long recognized that “only candidates or their authorized campaign committees are entitled to the LUC,” such that “even if an independent entity produces an advertisement that includes an appearance by a candidate, that independent entity is not entitled to the LUC.” Id. And under 52 U.S.C. § 30102(e)(3), political parties cannot be authorized committees because the parties support multiple candidates. Not only that, but the plain language of § 315(b)(2) supports the conclusion that the “stand by your ad” disclaimer is not, on its own, enough to entitle an advertisement to the LUC. Section 315(b)(2) does not create eligibility for the LUC; rather, it renders a candidate ineligible for the LUC for failing to agree to comply with or for breaching the “stand by your ad” disclaimer requirement. If § 315(b)(2) were read otherwise, § 315(b)(1)’s test for the LUC — that is, “the use of any broadcasting station by any person running ads, albeit “candidate-sanctioned” ones. See Br. of Intervenors 7-9. As the Party Committees acknowledge, party-coordinated ads are consequently run by party committees. Id. at 9-10. 25 USCA4 Appeal: 26-1785 Doc: 66 Filed: 08/25/2026 Pg: 26 of 69 who is a legally qualified candidate” — would be nothing more than surplusage. Cf. Chevron USA Inc. v. Plaquemines Parish, La., 146 S. Ct. 1052, 1063 (2026) (recognizing that courts must not “read a statute in a way that makes part of it redundant” (citation modified)). Ultimately, § 315(b)(1)(A) says what it says, and it does not say that the LUC extends to political parties engaged in coordinated expenditures. Therefore, the Public Notice is contrary to law for expanding the statute to say that it does. b. Finally, we assess whether joint fundraising committees with non-candidate members are eligible for the LUC, as prescribed by the Media Bureau’s Public Notice. We conclude that they are not. This analysis is straightforward: The applicable FCC regulations governing the operation of joint fundraising committees ensure that their use is, in substantial part, the use of their non-candidate members, which consequently is not “use . . . by” a legally qualified candidate. See 47 U.S.C. § 315(b)(1)(A). Instead, joint fundraising committees are, in effect, pass-through entities that “collect contributions, pay fundraising costs from gross proceeds and from funds advanced by participants, and disburse net proceeds to each participant.” See 11 C.F.R. § 102.17(b)(1). Notably, they do not get their own contribution limits, but they may collect “the total amount that the contributor could contribute to all of the participants” pursuant to the applicable limits, and each participant’s share of the contribution is reported as if it is made directly to the participating committee. Id. § 102.17(c)(3)(iii), (5). Similarly, 26 USCA4 Appeal: 26-1785 Doc: 66 Filed: 08/25/2026 Pg: 27 of 69 “expenses” are allocated between the participating committees based on pro-rata shares. Id. § 102.17(c)(7)(i)(A). In this light, the Party Committees take the position that joint fundraising committees are entitled to the LUC because 52 U.S.C. § 30102(e)(3)(A) provides that such committees may be designated as the “authorized committee” of a participating candidate. See Br. of Intervenors 28. But fatal to that contention is the allowance of that designation “solely for the purpose of joint fundraising,” see 52 U.S.C. § 30102(e)(3)(A) (emphasis added). Such a designation therefore makes it possible for joint fundraising committees to act “on behalf of” participating candidates when they fundraise for them. Id. § 30101(6). But that does not mean that all other acts by joint fundraising committees are undertaken on behalf of their participating candidates. Undeterred by that reality, the Party Committees assert that § 315’s text provides that “any authorized committee of such candidate” is entitled to the LUC. See Br. of Intervenors 21-22. But that is a misconstruction of the relevant statutory language. To reiterate, the LUC requirement is limited to “use . . . by” the candidate, and it says nothing about “authorized committees.” See 47 U.S.C. § 315(b)(1)(A). Rather, “authorized committees” are referenced in § 315(b)(2) — a provision that expressly conditions a candidate’s right to the LUC upon the candidate’s certification that “the candidate (and any authorized committee of the candidate)” will include a disclaimer in any political broadcast. Id. § 315(b)(2). As the Federal Candidates aptly explain in reply, “[n]othing about this language suggests that authorized committees are always entitled to lowest unit 27 USCA4 Appeal: 26-1785 Doc: 66 Filed: 08/25/2026 Pg: 28 of 69 charge, regardless of whether a given advertisement involves ‘use . . . by’ a candidate.” See Reply Br. of Pet’rs 38. Turning to the FCC’s position on the entitlement of joint fundraising committees to the LUC, the FCC maintains that “[w]hen a [joint fundraising committee] purchases airtime for use by one of its participating candidates, the use of airtime by the candidate . . . qualifies for the LUC rate.” See Br. of Resp’ts 37. Incurable in that regard is the FCC’s assumption that “use . . . by” a candidate is at issue in that situation, and the FCC’s disregard of the regulations that govern joint fundraising committees. See, e.g., Reply Br. of Pet’rs 39 (explaining that “regulations governing [joint fundraising committees] define which participant is responsible for which portion of every expenditure, and often mean that the bulk of the expenditure is not, by law, attributable to the candidate”). At bottom, a joint fundraising committee “cannot be understood to be ‘using’ a broadcaster on behalf of a candidate when it spends money that, under FCC regulations, was contributed to it as a contribution to a non-candidate committee and that must be deemed an expenditure by that non-candidate committee.” See Reply Br. of Pet’rs 39. We thus rule that the Media Bureau’s Public Notice illegally expands § 315(b)(1)(A)’s scope to extend the LUC to advertisements purchased by joint fundraising committees with non- candidate members. * * * Simply put, the LUC requirement and pertinent campaign finance statutes are clear that neither political parties nor joint fundraising committees with non-candidate members 28 USCA4 Appeal: 26-1785 Doc: 66 Filed: 08/25/2026 Pg: 29 of 69 can be entitled to the LUC. In asserting otherwise, the Public Notice is plainly contrary to law and cannot stand.11 11 It is significant beyond measure that none of the parties in this litigation has raised or pursued a constitutional issue of any sort. Indeed, these appellate proceedings were extensively briefed and well-argued without even a mention of any First Amendment issue. And as we know, the federal courts are not in “the habit of . . . decid[ing] questions of a constitutional nature unless absolutely necessary to a decision of the case.” See Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring). Nevertheless, our good dissenting colleague seeks to advance a position implicating the canon of constitutional avoidance, expressing concerns about the applicability of the First Amendment. Of importance, however, the constitutional avoidance doctrine “has no application in the absence of [statutory] ambiguity.” See Warger v. Shauers, 574 U.S. 40, 50 (2014) (citation modified). And the controlling statutory language in these proceedings — 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 . . . [must be at] the lowest unit charge of the station for the same class and amount of time for the same period. See 47 U.S.C. § 315(b)(1)(A) — simply says what it says, with no ambiguity in the statute’s plain text. As the Supreme Court has recognized, although a reviewing court may “construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute or judicially rewriting it.” See Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 841 (1986) (citation modified). Notwithstanding our distinguished friend’s tardy effort to manufacture a constitutional issue in this proceeding, we are not entitled to rewrite the statute. Put simply, as an applicable old proverb reminds us, we cannot “make a silk purse from a sow’s ear.” See U.S. v. Godwin, 272 F.3d 659, 681 (4th Cir. 2001). 29 USCA4 Appeal: 26-1785 Doc: 66 Filed: 08/25/2026 Pg: 30 of 69 IV. Pursuant to the foregoing, we grant the Federal Candidates’ Petition for Review and set aside as unlawful and hold for naught the Public Notice issued by the FCC’s Media Bureau. PETITION FOR REVIEW GRANTED 30 USCA4 Appeal: 26-1785 Doc: 66 Filed: 08/25/2026 Pg: 31 of 69 WYNN, Circuit Judge, concurring: I join the well-reasoned majority opinion in full. Indeed, it gives the parties and the public adequate notice of the ground rules for the upcoming elections. That laudable objective would be entirely undermined if we accepted the jurisdictional gamesmanship the FCC asks us to employ. I write separately to emphasize the incontrovertible fact that the latest possible date for agency finality is September 4, 2026, when the 60-day period preceding the upcoming elections begins under 47 U.S.C. § 315(b)(1). Any other considerations are nonjurisdictional, and they are particularly unpersuasive when the sole issue turns on our de novo review of a question of statutory interpretation. Certainly, the odd procedure at work here brings to mind some of the concerns that the Supreme Court articulated in Loper Bright: There are “occasion[s] on which abdication in favor of the agency is least appropriate.” Loper Bright Enters. v. Raimondo, 603 U.S. 369, 401 (2024). Here, adopting the FCC’s position could shift the task of pre-enforcement statutory interpretation entirely to the agency. Under that regime, the FCC may use its delegated authority as a get-out-of-review-free card. First, one of its divisions issues a “public notice” of its broad reinterpretation of a statute. That notice has the “same force and effect” as a rule promulgated by the Commission. 47 U.S.C. § 155(c)(3). Second, the full Commission does nothing. Third, the new rule goes into effect with no judicial review.1 1 The dissent suggests that prolonged inaction by the Commission is “a reasonable concern” that could be alleviated through a writ of mandamus compelling agency action. Diss Op. at 48. But it also recognizes that a several-month delay is generally insufficient (Continued) 31 USCA4 Appeal: 26-1785 Doc: 66 Filed: 08/25/2026 Pg: 32 of 69 That cannot be what Congress intended. And thankfully, precedent does not direct such a dangerous result. I. The FCC argues, without legal authority, that we cannot consider constructive denial in our finality analysis.2 See Response Br. at 27. Yet finality is a “pragmatic” inquiry. U.S. Army Corps of Eng’rs v. Hawkes Co., 578 U.S. 590, 599 (2016). And it is uncontroversial that “[b]oth an agency’s failure to act and its affirmative actions are subject to review.” Sierra Club v. Larson, 882 F.2d 128, 130 (4th Cir. 1989). That is why federal appellate courts have long held that “when administrative inaction has precisely the same impact on the rights of the parties as denial of relief, an agency cannot preclude judicial review by casting its decision in the form of inaction rather than in the form of an order denying relief.” Env’t Def. Fund, Inc. v. Hardin, 428 F.2d 1093, 1099 (D.C. Cir. 1970) (citations omitted); see Int’l Navigators Council of Am. v. Shaffer, 444 F.2d 904, 910 n.11 (D.C. Cir. 1971) (explaining that “administrative inaction” that is “the equivalent of an order denying relief” is “susceptible of direct review”) (quotation omitted). Thus, when an agency has delayed its response “beyond the time in which action could be effective,” a court may determine that “inaction has precisely the for mandamus relief. Id. How mandamus could be a solution to the FCC’s unfettered ability to change broadcast rules in the months before an election eludes me. 2 The FCC argues only that constructive denial has never been applied to the Communications Act. Of course, that level of specificity allows it to ignore any instances in which the concept has been applied to other agency action. 32 USCA4 Appeal: 26-1785 Doc: 66 Filed: 08/25/2026 Pg: 33 of 69 same impact on the rights of the parties as denial of relief.” Coal. For Sustainable Res., Inc. v. U.S. Forest Serv., 259 F.3d 1244, 1251 (10th Cir. 2001). To hold otherwise would be to give agencies the unfettered ability to avoid judicial review, in violation of the statutory scheme. According to the FCC, it should be able to employ its delegated authority to take action that is equivalent to actions by the full Commission, ignore any challenges rather than formally deny them, and then allow the time for effective relief to pass without any judicial review of the merits. Under that reading, we should abandon our usual pragmatic approach for a strictly technical rule that hinges on the formality of agency action. We are not the first to reject such a strained and hyperformal interpretation of finality. In Friedman v. FAA, the D.C. Circuit found that the FAA’s refusal to reach a formal determination constituted “a constructive denial” of an airline pilot’s license application. 841 F.3d 537, 541 (D.C. Cir. 2016). The court explained that the applicable test for finality was not “whether there are further administrative proceedings available, but rather whether the impact of the order is sufficiently final to warrant review in the context of the particular case.” Id. at 542 (cleaned up). At oral argument, the FCC agreed that it needed the chance to put its “two cents worth in” before this Court reviews the Media Bureau document. Oral Arg. at 49:05–15, https://www.ca4.uscourts.gov/OAarchive/mp3/26-1785-20260807.mp3. Yet almost immediately thereafter, the agency conceded that “it’s very unlikely the Commission will act here before September 4th.” Oral Arg. at 49:45–50:15. That is precisely the sort of 33 USCA4 Appeal: 26-1785 Doc: 66 Filed: 08/25/2026 Pg: 34 of 69 “vague prospect of reconsideration” that indicates the FCC may permit the deadline for effective action to pass without further discussion. Friedman, 841 F.3d at 543. The agency’s position, in substance, is that it may thwart the judicial review of an operative rule either by postponing its own review until review is no longer meaningful or by declining to act at all. That conception of administrative authority cannot be reconciled with the judicial role. As I reiterate below, an agency may not reserve to itself the power to defeat judicial review through delay or inaction. That is too much power for an agency. In its subsequent letter to this Court on August 17, the FCC confirmed that it did not intend to review the petitioners’ challenges. Instead, the agency informed us that the Chairman had circulated a proposal to dismiss the petitioners’ application; further, the agency had already dismissed a related request for review from another interested party. See Brown v. FCC, No. 26-1785 (4th Cir. Aug. 17, 2026), Dkt. No. 63. In other words, the FCC has no intention of using any of its potential “power to persuade” us in this case, as the dissent asserts it must.3 See Diss. Op. at 51. Yet without relief, the parties agree that on September 4, 2026, broadcasters will be obligated to offer the lowest-unit charge to qualified parties. See Oral Arg. at 55:00–25; 3 Moreover, the practical benefits of a formal decision from the Commission are minimal in this case. Statutory interpretation is “exclusively a judicial function,” and we owe no deference to the agency’s interpretation. Loper Bright Enters. v. Raimondo, 603 U.S. 369, 387 (2024). To be sure, there may be situations in which we are persuaded by an agency’s opinion “to the extent it rests on factual premises within [the agency’s] expertise.” Id. at 402 (quotation omitted). But here, the parties acknowledge that the single merits issue is one of pure statutory interpretation. 34 USCA4 Appeal: 26-1785 Doc: 66 Filed: 08/25/2026 Pg: 35 of 69 47 U.S.C. § 315(b)(1) (lowest-unit charge in effect 60 days before a general election). Those who fail to heed the FCC’s latest interpretation of § 315(b) “do so at the risk of significant . . . civil penalties.” Hawkes, 578 U.S. at 600; see 47 U.S.C. § 503(b)(2)(A) (describing penalties up to “$25,000 for each violation or each day of a continuing violation”). Thus, broadcasters will be put in the difficult position of either (1) risking those penalties or (2) selling broadcast time at a lower rate to the additional groups that the agency identifies.4 II. The FCC also argues that we must conclude that a final agency action occurred before the petitioners filed their petition for review in this Court, arguing that a too-early filing has jurisdictional consequences. Not so. Under 28 U.S.C. § 2344, parties “aggrieved by the final order may, within 60 days after its entry, file a petition to review the order” in this Court. In the past, courts have tied the commencement of the 60-day period to their jurisdiction, such that a petition filed too 4 Though the FCC attempts to persuade us otherwise, it is clear that the volume of broadcast time that these groups would purchase under the lowest-unit charge would be a sea change. For example, before the Supreme Court’s decision in National Republican Senatorial Committee v. FEC, “party-coordinated expenditures in Hous