FCC Regulation of AI-Generated Political Ads Could Go into Effect This Cycle
By: Oliver Roberts and Jason Torchinsky
On Thursday July 25, 2024, the Federal Communications Commission (FCC) announced that it will “move forward with a proposal to implement new AI transparency requirements.” The FCC’s proposal requires the disclosure of artificial intelligence (AI) use in TV and radio advertisements. While the FCC’s proposal requires the disclosure of AI in political ads on TV and radio, it does not prohibit the use of AI in such ads.
In a press release, FCC Chairwoman Jessica Rosenworcel described the proposal as “a major step to guard against AI being used by bad actors to spread chaos and confusion in our elections.”
The FCC noted that artificial intelligence is now “powerful enough to mimic human voices and create life-like images.” The FCC cited an incident during the Democratic primary election in January when voters received an AI-generated call purporting to be from President Joe Biden advising them to skip voting. Chairwoman Rosenworcel also expressed specific concerns over the use of AI to manipulate voices and images in political advertising.
The FCC’s proposal was published in the Federal Register on August 5, 2024.The public has 30 days from the date of publication to comment on the proposed rule. After this comment period, the FCC will review the feedback and may finalize the regulation before the 2024 election.
Notably, the FCC’s proposal would only apply to TV, radio, and telephone communications because the FCC’s regulatory authority is limited to these mediums. The rule would not apply to political advertisements on digital and streaming platforms.
Nonetheless, the Federal Election Commission (FEC) is separately considering rulemaking to require AI disclosures in political ads on digital and streaming platforms. In fact, the FEC could act as early as this month. In June, the Vice Chair of the FEC sent a letter to the FCC stating, “No one agency currently has the jurisdiction or the capacity to address every aspect of this large and complicated issue.”
The FCC’s press release also acknowledged the complementary regulatory roles of the FCC and FEC, stating that “[w]hile the FEC can regulate AI use in online advertisements for federal candidates, the FCC can focus on the areas where the FEC is not able to act.”
However, the FCC’s attempt to regulate the use of AI in political ads is not without its critics. FCC Commissioners Brendan Carr and Nathan Simington wrote dissenting statements in response to the FCC’s proposed rule.
Commissioner Carr criticized the proposal as a partisan attempt to “change the rules of the road” for the 2024 election and deemed it unlawful. Commissioner Simington cautioned against regulating such a highly scrutinized area, stating that “absent the compelling force of an ongoing crisis or a situation worsening moment-to-moment, the worst time to regulate a domain is when everyone is talking about it.”
FEC Chairman Sean Cooksey has also criticized the FCC’s proposal. After FCC Chairwoman Rosenworcel first announced the proposed rule back in May 2024, FEC Chairman Cooksey sent her a letter expressing “concern[s] that parts of [the FCC’s] proposal would fall within the exclusive jurisdiction of the Federal Election Commission (“FEC”), [and] directly conflict with existing law and regulations, and sow chaos among political campaigns for the upcoming election.”
The FCC’s rule is currently in the public comment period, which ends on September 4, 2024. The FCC’s reply comments are due on September 19. Following this period, the FCC is expected to address public comments and may implement the regulation before the 2024 election, though legal challenges to delay or overturn the rule are likely.
