FCC: Time Is 'Now' for AI Political Ad Rule
An FCC proposal that requires disclosing AI-generated content in political ads seems aimed at having rules ready for the 2024 presidential election, statements Thursday from FCC Chairwoman Jessica Rosenworcel and agency spokespeople indicate. However, broadcast insiders told us there probably isn’t enough time for that to happen without causing severe disruption. The FCC is proposing an update of the political file rules “to meet the moment we are in,” Rosenworcel said during a news conference. Her statement was in response to a question about whether the rules would be in effect on Election Day. Rosenworcel didn't explicitly say the item was intended for the 2024 election, though. “She has been clear that the time to act on public disclosure of AI use is now,” an agency spokesperson said in an email after being asked to clarify the planned timing of the proposal.
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Rosenworcel and Commissioner Brendan Carr discussed the AI political ad disclosure NPRM during news conferences following the commissioners' open meeting Thursday. The proposal is “simple” and similar to past FCC political file updates, such as the requirement that they be kept online, Rosenworcel said. Carr doubled down on objections he raised when the NPRM was circulated, arguing that the proposal is outside the agency’s authority. Rules giving the FCC jurisdiction over political files are “specific, rifle shot grants of authority,” whereas the NPRM relies on old precedents to claim broad authority to act on AI ads, Carr said. “When Congress wants the FCC to act in such a high stakes area as political speech, the FCC does so through a narrow statute,” Carr added.
Four Republican senators denounced the AI political ad proposal in a letter Thursday. “The proposal you are advancing aligns closely with the broader agenda advocated by the Democrat National Committee, which urged the FEC to introduce sweeping regulations governing AI-generated political speech before the 2024 elections,” a joint letter from John Thune (S.D.), Mitch McConnell (Ky.), Eric Schmitt (Mo.) and Ted Cruz (Texas) said. “It is unfortunate that the FCC is behaving less like an independent commission accountable to Congress, and more as a de facto arm of the Biden campaign.” The FCC’s role “should remain within the confines of its designated responsibility: ensuring basic recordkeeping requirements without encroaching on the content of political discourse or favoring one type of political advertising over another,” the letter said.
Broadcast industry executives told us they anticipate the item will require that broadcasters ask advertisers if an ad contains generative AI-produced content. This could be done with a simple form, they added. The item is also expected to include an FCC definition for AI-created content.
Carr said Thursday he agreed with points that Federal Election Commission Chair Sean Cooksey raised in a letter to Rosenworcel this week. A Donald Trump appointee and former general counsel to Sen. Josh Hawley, R-Mo., Cooksey said the FEC has sole authority over political reporting requirements and disclaimers. In addition, Cooksey took issue with applying the rules in time for this year's election. “Any final rule from your proposal would become effective mere weeks before the election,” the letter said. “This would create confusion and disarray among political campaigns, and it would chill broadcasters from carrying many political ads during the most critical period before Americans head to the polls.”
The letter also raises concerns that the FCC’s policy would conflict with an FEC proceeding on the same matter. “If those disagreements cannot be avoided, a federal court may be called upon to resolve them through litigation,” Cooksey wrote. He has said the FEC plans to act on AI political ads this year, which an FCC spokesperson said undercuts Cooksey’s criticism of Rosenworcel’s timing. It isn’t clear why the FCC changing political ad rules in an election year would sow chaos while an FEC rule change wouldn’t, the spokesperson said. FEC Vice Chair Ellen Weintraub, a George W. Bush appointee, wrote to the FCC in support of the proposal. "No one agency currently has the jurisdiction or capacity to address every aspect of this large and complicated issue," her letter said. Weintraub argued the FEC and FCC should conduct notice and comment proceedings on the matter to "complement each other and provide greater transparency to the public."
A broadcast executive told us the industry might welcome FCC action on AI in political ads because it could serve as an alternative to a patchwork of state laws. Still, broadcasters are concerned about timing if it's aimed at the 2024 election. Even if the NPRM has shortened comment periods and the agency rushes an order, it's unlikely to land until fall. Under those circumstances, broadcasters would likely seek a court-ordered stay, an industry executive said. “I think we're going to continue to have a robust, spirited debate about this over the coming weeks and potentially coming months,” Carr said Thursday.