By Cameron Coats
A draft proposal that, if adopted, would look into whether the FCC should require disclosure when there is AI-generated content in political ads on broadcast radio and television stations is getting the thumbs down from the Federal Election Commission. In fact, FEC Chairman Sean Cooksey believes the yet-to-be-introduced Notice of Proposed Rulemaking directly infringes on his agency’s exclusive jurisdiction.
As first reported on May 22, the draft NPRM introduced by Chairwoman Jessica Rosenworcel would “increase transparency” by:
- Seeking comment on whether to require an on-air disclosure and written disclosure in broadcasters’ political files when there is AI-generated content in political ads
- Proposing to apply the disclosure rules to both candidate and issue advertisements
- Requesting comment on a specific definition of AI-generated content
- Proposing to apply the disclosure requirements to broadcasters and entities that engage in origination programming, including cable operators, satellite TV and radio providers and section 325(c) permittees
For Cooksey, this is an overreach of authority on the part of the FCC and would “sow chaos among political campaigns.”
The FEC, mandated by Congress to oversee the Federal Election Campaign Act of 1971, maintains that it is the sole body empowered to regulate political disclaimers and communications. It cites previous federal court rulings such as Galliano v. United States Postal Service as the basis for its arguments.
Cooksey’s response also highlights the potential for conflict between the FCC’s proposals and existing FEC regulations, particularly in the area of AI usage in political communications. The FEC is already contemplating rules to address new technologies such AI in political ads, suggesting that any preemptive regulations by the FCC could lead to legal disputes and duplicative regulatory efforts.
Lastly, Cooksey is “deeply troubled” by the timing of Rosenworcel’s proposed rules. Specifically, he took aim at the Commission’s “hope to have the regulations in place before the election.” He writes, “The general election is in five months. Assuming you do not disregard the procedural protections of notice-and-comment rulemaking, any final rule from your proposal would become effective mere weeks before the election. 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. As a result, your agency would be interfering with and undermining political campaigns and the election. ”
The letter ends by recommending that any new regulations from the FCC regarding political advertising and AI be postponed until after the November 2024 elections.
