A Public Notice Is Not an Order

Chief Justice John Roberts stopped the clock on Thursday 8 October, a day before it ran out. The Fourth Circuit had ordered the Federal Communications Commission to resolve, “by 12:00 noon on Friday, October 9, 2026,” an application for review that four Democratic candidates filed in April. Roberts’s order, entered on the Supreme Court docket, says that judgment “is hereby stayed pending further order of the undersigned or of the Court,” and asked for a response by 5 p.m. on Saturday.

The response arrived on Saturday 10 October, and the Solicitor General’s reply was submitted on Sunday morning. The papers are now in. What the full Court has to decide is narrow, and it is not whether political parties are entitled to the discounted advertising rate federal law gives candidates. It is whether a court of appeals may make an agency decide a question quickly enough for the court to review the answer before an election.

This publication set out the background when the Fourth Circuit acted, in The Order to Decide. The candidates are Sherrod Brown, Jon Ossoff and Roy Cooper, running for the Senate, and Kristen McDonald Rivet, running for the House. The Republican congressional and senatorial committees are on the other side, and have filed their own stay application, No. 26A477. The Republican National Committee has filed an amicus brief.

What the candidates are asking for

The candidates’ opposition opens with its own framing of the question: “may a federal agency engage in blatant procedural trench warfare to stave off judicial review of an unlawful agency directive until it is too late to matter?” Its legal footing is a single clause of the Communications Act, which provides that “every such application shall be passed upon by the Commission.” The candidates add that the Commission is not obliged to give reasons: “The Commission does not need more time; it is not even required to explain itself.”

They ask the Court to “deny the Applications, lift the administrative stay, and reinstate the Fourth Circuit’s order.” They also say the Supreme Court’s own September ruling points their way, because it said the Commission “is required to resolve every application it receives” and did not decide whether the Media Bureau’s notice was lawful.

The opposition also makes a concession the government has seized on. Discussing how long the application had been pending when the panel acted, more than five months, it says that “delays of this length may not typically trigger mandamus relief,” and argues that the circumstances here are not typical.

What the government says in reply

The Solicitor General’s reply takes that concession first. Mandamus requires a right that is “clear and indisputable,” and the reply says the candidates “do not identify a single case in which any other court has ever held that a period as short as here triggers that demanding standard.” It says the candidates would reduce the Commission’s role to “a meaningless ritual,” an order that says “Denied” so the Fourth Circuit can rule on the merits.

The reply goes further than the original application on timing. It argues that the Commission may reasonably wait until after the election to decide, citing the rule in Purcell v. Gonzalez against changing election rules close to a vote, “lest it create confusion about the meaning of the lowest-unit-charge requirement after the requirement has already taken effect.” To the candidates’ point that the Commission’s lawyers have already defended the notice in court, it answers that “statements made by agency lawyers in litigation are not equivalent to decisions made by the agency itself.”

Why the order of events is the case

The reason a court cannot simply rule on the notice is the sequence the Supreme Court enforced on 4 September. In its unsigned opinion, over a dissent from Justice Ketanji Brown Jackson, the Court said the Act “contemplates that an aggrieved party will file an application for review with the Commission, that the Commission will resolve that application by order, and that public notice of that order will issue before an aggrieved party may petition for further review in federal court.”

The document in dispute is itself a public notice, DA 26-300, issued by the Media Bureau on 30 March. It says the bureau is taking the opportunity “to remind broadcasters and the public” of the rate rules. A staff notice of that kind is not the order the statute has in mind. Until the full Commission rules and gives public notice of its ruling, the clock for going to court does not start, and the 4 September opinion held that the Fourth Circuit likely lacked jurisdiction to act before it did.

The mandamus order of 7 October was the panel’s answer to that sequence. Its majority wrote that the Commission “has since delayed agency review in an obvious effort to preclude judicial review prior to the November 3 election day.” Judge J. Harvie Wilkinson III, dissenting, wrote that the majority “demands at gunpoint an agency decision”. Both passages are in the appendix to the government’s application.

The calendar the statute runs on

The rate is set by 47 U.S.C. § 315(b), which applies the lowest unit charge in the sixty days before a general election. For the 3 November election that window opened on 4 September. On Sunday 11 October, 23 days of it remain, by this publication’s count.

The Commission’s own calendar runs later. The comment period on the candidates’ application closed on 30 September. The Fourth Circuit’s order records that the Commission invited comment on a second application, from the Television Bureau of Advertising, through 19 October. The government says the two raise overlapping issues and that it should not have to decide one before it has heard the comments on the other. After 19 October, 15 days of the sixty will be left.

No ruling on the applications had been entered on the docket by Sunday morning. If the Court keeps the stay in place, the notice stays in force and the Commission sets its own timetable, which, on the government’s reply, may run past the election. If it lifts the stay, the Fourth Circuit’s deadline has already passed, and the panel would have to set a new one. Either way, the statute requires the Commission to decide. It does not say when.

Sources

The Chief Justice’s order, the filing dates and the parties are from the Supreme Court dockets for Nos. 26A476 and 26A477. The candidates’ arguments and quotations are from their opposition of 10 October; the government’s are from its reply of 11 October. The panel and dissent quotations and the comment dates are from the Fourth Circuit’s order of 7 October, reproduced in the government’s appendix. The sequence quotation is from the Court’s opinion of 4 September. The notice’s wording is from DA 26-300, and the rate window is from the statute. The count of days is this publication’s.