The Federal Communications Commission wants to require radio and television stations, as well as cable, direct broadcast satellite operators such as Dish and DirecTV, and satellite radio operators such as Sirius/XM (collectively, “broadcasters”), to disclose when artificial intelligence (AI) is used in political advertisements, and is asking for public comments on the proposal. Comments are due September 4, 2024, and reply comments are due September 19, 2024. The FCC’s full Noticed of Proposed Rulemaking can be found here.

Under the proposal, broadcasters would be required to ask purchasers of political airtime whether their ads contain AI-generated content. If the ads do contain such content, a broadcaster would have to air an announcement with each ad, disclosing the use of AI-generated content in the ad. The FCC has proposed standardized language for the disclosures: “The following message contains information generated in whole or in part by artificial intelligence.”

Broadcasters would also be required to upload notices to their online public inspection files for political ads that contain AI-generated content, also using standardized language.

The FCC is proposing to define “AI-generated content” broadly, as “an image, audio, or video that has been generated using computational technology or other machine-based system that depicts an individual’s appearance, speech, or conduct, or an event, circumstance, or situation, including, in particular, AI-generated voices that sound like human voices, and AI-generated actors that appear to be human actors.”

It is unclear to what extent the FCC’s proposal may conflict with the “no censorship” requirement of Section 315 of the Communications Act, which prohibits broadcasters from altering the content of candidate ads. The FCC has indicated it believes a “content neutral” disclaimer will not violate the “no censorship” rule.

Online and streaming-media ads will not – and cannot – be impacted by the FCC’s proposal. The FCC has no authority over online and streaming content. However, applying different standards to ads for the same candidates and issue advertisers depending on the platform on which the ads are distributed could confuse consumers.

Many states have already enacted regulations that govern AI use in political ads. Unlike the FCC’s approach, most states do not impose liability on broadcasters. Instead, the burden of providing AI disclosures is placed on the creators of the ads.

It is doubtful the FCC’s proposal, even if adopted, could take effect before the 2024 elections. However, the proposal is significant and has long-term implications. The National Association of Broadcasters (NAB) is preparing comments which will address numerous concerns raised by the proposal. We think it is important for our clients to submit reply comments supporting NAB.