Key Points

  • The Supreme Court, in a per curiam opinion, stayed the Fourth Circuit's October 7, 2026 mandamus order requiring the FCC to decide four congressional candidates' application for review within 48 hours.
  • The court held that mandamus is reserved for extraordinary causes and that 47 U.S.C. 155(c)(4) requires the FCC to act on applications but does not set any timeframe for doing so.
  • The court held that the separation of powers does not allow the Judiciary to compel an agency to abandon its ongoing deliberations on a two-day deadline, and that forced abandonment of deliberation is an irreparable injury.
  • The related stay application in NRCC v. Brown, No. 26A477, was denied as moot, and Justices Sotomayor and Jackson would have denied the applications.
  • The stay remains in effect pending the filing and disposition of a timely certiorari petition.

The U.S. Supreme Court on Oct. 14 blocked a federal appeals court order that had given the Federal Communications Commission 48 hours to decide a dispute over the discounted rates broadcasters must charge political advertisers, reasoning that judges may not force an agency to cut short its deliberations on a two-day deadline.

In an unsigned per curiam opinion, the court granted the FCC's application to stay an Oct. 7 order of the U.S. Court of Appeals for the Fourth Circuit. Justices Sotomayor and Jackson noted that they would have denied the applications.

The ruling is the second time in six weeks that the justices have halted action by the same Fourth Circuit panel in the case. The new order adds a holding on mandamus, and it returns control of the timetable to the Commission. "Our system of separation of powers does not allow the Judiciary to meddle in 'the workings of a coordinate branch of the Government' in this manner," the court wrote.

The dispute began on March 30, 2026, when the FCC's Media Bureau issued a public notice about the lowest unit charge, or LUC. That requirement, set out in 47 U.S.C. Section 315(b)(1)(A), concerns the favorable rates broadcasters must charge for campaign advertisements in the weeks before an election. The notice stated that political candidates, joint fundraising committees with noncandidate members, and political parties engaged in coordinated political activity are all entitled to the LUC.

Four candidates for Congress, listed in the caption as Sherrod Brown and others, filed an application for review asking the full Commission to set aside the notice as unlawful because only candidates are entitled to the rate. Two months later, while that application was still pending at the agency, the candidates filed a petition for review in the Fourth Circuit against the FCC and the United States, seeking the same relief.

A divided Fourth Circuit panel ruled that it had jurisdiction, granted the petition, and set aside the notice. The majority reasoned that the plain text and legislative history of Section 315(b)(1)(A) limit the LUC to political candidates.

The Supreme Court stayed that decision on Sept. 4 in National Republican Congressional Committee v. Brown. The Communications Act, the court explained then, requires the Commission to resolve an application for review before a party may go to federal court. "Because the candidates' application for review was pending when they filed their petition for review," the court wrote, "the Fourth Circuit likely lacked statutory jurisdiction to address their challenge." The court added that the panel's contrary holding "split[ ] with every other Circuit to have considered the issue," citing decisions from the Third, Eleventh, and District of Columbia Circuits.

On Oct. 7, the same panel ordered the Commission to resolve the candidates' application by Oct. 9, leaving the agency 48 hours to issue a final decision. The panel described that step as "the only means to finally move forward with . . . judicial review." The order came one week after the comment period on the candidates' application had closed. It also arrived during another comment period on a parallel application that the Commission was considering in tandem.

After the FCC asked the Supreme Court for a stay, the Fourth Circuit's order was administratively stayed on Oct. 8, a temporary pause that allowed the justices to rule before the 48-hour deadline expired.

To win a stay, the court said, the FCC had to show a reasonable probability that four justices would vote to hear the case, a fair prospect that a majority would reverse, and a likelihood of irreparable harm without a stay. "Each of these factors favors the FCC, so we grant the stay," the court wrote.

On the merits, the court described mandamus as a "drastic and extraordinary" remedy "reserved for really extraordinary causes," quoting its 2004 decision in Cheney v. U.S. District Court for D.C. A party seeking the writ must show that it has "no other adequate means to attain the relief he desires" and that its right to the writ is "clear and indisputable," the court wrote.

The court held that the Fourth Circuit's decision to issue an "extraordinary" writ was "inappropriate under the circumstances," because the statute leaves the timing to the agency. "The Communications Act requires the Commission to act on every application it receives, but it does not obligate the Commission to act within a particular timeframe," the court wrote, citing 47 U.S.C. Section 155(c)(4). Relying on its 1978 decision in the Vermont Yankee case, the court said the Commission may set its own procedures and schedule for resolving such applications.

"Undeterred, the Fourth Circuit issued a mandamus order requiring the Commission to issue a final decision on the candidates' application just five months after it was filed and within just 48 hours," the court wrote.

The court also found that the FCC would suffer irreparable harm, meaning injury that a later ruling could not undo. "That the mandamus order requires the FCC to abandon its deliberation process is itself an injury that cannot be remedied after the fact," the court wrote.

The court denied as moot a related stay application filed by the National Republican Congressional Committee and others, docketed as No. 26A477.

The stay of the Fourth Circuit's order, entered in that court's case No. 26-2230, remains in effect pending the filing and disposition of a petition for certiorari, the request for full Supreme Court review, if one is timely sought. If the court denies certiorari, the stay ends automatically. If the court grants review, the stay ends when the court sends down its judgment. The order does not decide whether the LUC extends beyond candidates. That question remains before the Commission, which may now resolve the candidates' application on its own schedule.