As has been widely publicized, the FCC has proposed that broadcasters be required to air an announcement for all political ads, including both candidate and issue ads that contain content generated by artificial intelligence (AI). The deadlines for comments on this proposal have now been set. Initial comments will be due by September 4, 2024, and reply comments will be due by September 19, 2024.
Because of the potential impact of such rules, we would encourage broadcasters to consider filing comments to point out some of the burdens that could be imposed. Even though the Chairman seems determined to adopt such rules, some Commissioners seem to view the number of comments on each side of an issue as having weight in the decision-making process.
Specifically, what the FCC has proposed is to require that all broadcasters provide on-air announcements for all political ads that contain AI-generated content to disclose such content, and that broadcasters place a notice of the AI-generated content in their online political files. In addition to applying the same requirements to cable companies and satellite operators that originate programming, the Commission is proposing to apply them to U.S. entities that produce programming for foreign stations with signals that reach into the U.S.
The Commission emphasizes that it is not banning or restricting the use of AI-generated content in political ads, and broadcasters are prohibited by both statute and rule from censoring or altering the content of candidate advertisements, though the same prohibition does not apply to issue ads. The FCC also recognizes that both the Federal Election Commission and a number of states have taken action to regulate AI content in political ads. Nonetheless, it has proposed to require that broadcasters inform all purchasers of political ads of their obligation to disclose AI-generated content and inquire whether the ad in question contains such content.
There are many questions which surround this process, such as how broadcasters will document that the inquiry was made, whether the person buying the ad time will even know if an ad includes AI content, what a broadcaster needs to do if an advertiser does not respond to an inquiry, and what extra steps a broadcaster must take if an outside party alleges that an ad has AI-generated content of which the broadcaster was previously unaware. Additional questions surround how and when the disclosure should be made – before, during or after the ad, and in what language? Further, what should be done about ads embedded in syndicated programming? Even more fundamental is determining what the definition of AI-generated content should be. The FCC is seeking comment on all of these issues.
The obvious questions not specifically asked are how will it be determined if broadcasters made sufficient efforts to learn of any AI-generated content, and what penalties will be imposed if they did not. Does the fact that broadcasters serve the public interest mean that they have to become AI enforcement officers?
The FCC did, however, seek from commenters a cost-benefit analysis, weighing the burdens on broadcasters against the unknown number of ads that might have content that would require an announcement. Finally, comment is sought on the truly fundamental issues of whether the FCC has the statutory authority to impose these requirements, and whether the proposed rules would create First Amendment issues.
If you would like to know more about these proposed rules or have an interest in filing comments with the FCC, do not hesitate to contact the attorneys at Fletcher, Heald & Hildreth.