Legal Bulletins


The OAB, through its FCC and Ohio counsel, provides updates on current issues and regulatory changes that impact broadcasters.

Election Political Broadcasting

LUC Window for Ohio Primary Elections Opens Tomorrow, March 19, Despite Recent Supreme Court Decision and Redistricting Complications

As you’re well aware, it’s an election year!  And as you’re also likely well aware, Ohio is in the midst of a complicated redistricting process that has yet to generate official maps to be used for the forthcoming primary elections.  On March 16, the Ohio Supreme Court rejected the latest set of state House and Senate maps and ordered new maps to be redrawn by March 28.  At the same time, there is also pending federal court litigation implicating the validity of Ohio’s state House and Senate maps, as well as Ohio’s federal congressional map.

Currently, Ohio’s primary election is scheduled for May 3, 2022, and the primary includes both federal and state races, including federal congressional races.  However, nearly all Ohio lawmakers appear to agree that the May 3, 2022, primary date is unlikely to hold for some or all races, given the continuing uncertainty surrounding the legislative maps that will be used in the primary and the various deadlines that elections officials must meet prior to the primary election.

Nonetheless, at least for now, the “lowest unit charge” (“LUC”) window for Ohio’s primary election (i.e., the election still currently scheduled for May 3) will open TOMORROW, on Saturday, March 19, 2022. 

We’ve spoken with the FCC’s political programming Staff about the complications described above, and Staff informally advised that the safest course would be for broadcasters to honor the opening of the LUC window tomorrow March 19, 2022.  We presented several hypothetical scenarios to Staff regarding what could happen next, and Staff provided additional informal guidance, which we’ve summarized as follows.  (NOTE: the following are merely hypothetical situations—as of the date of this memorandum the primary has NOT been rescheduled.)

What if Ohio’s primary is rescheduled from May 3, 2022, to a later date, but is not rescheduled until after the LUC window opens on March 19, 2022?
In this circumstance, the LUC window that opens on March 19 would close immediately and a new LUC window would open 45 days prior to the date of the rescheduled primary election.  So, for instance, if next Wednesday, March 23, Ohio lawmakers move the primary election date to July 5, 2022, then the LUC window would shut immediately (having been open from March 19 to March 23) and reopen on May 21, 2022 (45 days prior to the hypothetical rescheduled primary election date of July 5, 2022).

What if Ohio’s primary is rescheduled from May 3, 2022, to a later date, but the date is announced less than 45 days from the rescheduled election date? 
In this circumstance, the LUC window for the rescheduled primary date would open immediately on the date the rescheduling takes legal effect, and it would run until the rescheduled election day.  Broadcasters would likely not be responsible for rebates for the period before the rescheduling takes legal effect that otherwise would have fallen within the typical 45-day LUC window for primary elections.  For example, if on Wednesday, March 23, lawmakers cancel the May 3 primary, but it takes until June 1, 2022, for a new primary date of July 5, 2022, to be adopted, the LUC window for the rescheduled primary would only be from June 1 to July 5 (and, as noted in the previous hypothetical, the initial March 19 to March 23 period before the May 3 primary date was cancelled).

What if Ohio’s primary is “split” such that a primary election for some races remains on May 3, 2022, and another primary election is rescheduled for the remaining races? 
This specific “split” circumstance has already been suggested by some lawmakers.  If such a “split” were to occur, the same principles articulated above would apply to each primary election to be held.  So, if next Wednesday, March 23, Ohio lawmakers take formal legal action to move certain state elections (such as state House and Senate races) to July 5, 2022, and to retain the May 3, 2022, primary date for certain federal, statewide, and local elections, then (1) the LUC window would remain open through May 3 for the candidates in that May 3 primary (running from March 19 to May 3), and (2) the LUC window would immediately close and then reopen on May 21 for all candidates running in the rescheduled July 5 primary (running from March 19 to March 23, and then again from May 21 to July 5).

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Clearly, this situation is a bit unusual and remains fluid.  We intend to keep you posted on LUC developments as the situation plays out.

Legal bulletin provided by Brooks, Pierce, McLendon, Humphrey & Leonard, LLP


This Legal Update should in no way be construed as legal advice or a legal opinion on any specific set of facts or circumstances. Therefore, you should consult with legal counsel concerning any specific set of facts or circumstances. The information provided through this update does not constitute legal advice from the OAB or its legal counsel and does not establish an attorney-client relationship between any member and OAB legal counsel.