FCC Proposes Labeling and Disclosure Rules for AI-Generated Content in Political Ads

On Thursday, July 25, the Federal Communications Commission (FCC) released a Notice of Proposed Rulemaking (NPRM) proposing new requirements for radio and television broadcasters and certain other licensees that air political ads containing content created using artificial intelligence (AI). The NPRM was approved on a 3-2 party-line vote and comes in the wake of an announcement made by FCC Chairwoman Jessica Rosenworcel earlier this summer about the need for such requirements, which we discussed here.

At the core of the NPRM are two proposed requirements. First, parties subject to the rules would have to announce on-air that a political ad (whether a candidate-sponsored ad or an "issue ad" purchased by a political action committee) was created using AI. Second, those parties would have to include a note in their online political files for political ads containing AI-generated content disclosing the use of such content. Additional key features of the NPRM are described below.

• Definition of "AI-Generated Content." The NPRM proposes to adopt a broad definition of AI-generated content to mean "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." The NPRM expresses particular concern about "deepfakes" given that deepfakes could, according to the NPRM, mislead the public about candidate positions or create distrust among potential voters.
• Covered Entities. The NPRM proposes to apply its requirements to radio and television broadcast stations, cable operators, Direct Broadcast Satellite (DBS) providers, and Satellite Digital Audio Radio Service (SDARS) licensees that originate programming. It also proposes to apply its requirements to permit holders broadcasting programming from foreign stations into the United States under Section 325(c) of the Communications Act. (We refer to these entities as "Covered Entities" throughout.)
• Inquiry Requirement for Covered Entities. The NPRM proposed a rule that would require a Covered Entity to ask a party seeking to air a political ad whether the ad in question contains AI-generated content. Specifically, "at the time an agreement is reached to air a political ad," a Covered Entity would have to (a) inform the person or entity requesting airtime that the station is required to make an on-air disclosure for political ads containing AI-generated content, and (b) inquire whether the ad in question includes AI-generated content. The NPRM also seeks comment on the extent of the Covered Entity's duty to make inquiries regarding whether an ad includes AI-generated content. For example, the NPRM asks whether a Covered Entity could meet the new requirement if it merely asks about the content of the ad but does not receive a response. The NPRM also asks how the FCC should handle circumstances in which a Covered Entity learns from a third party that a political ad contains AI-generated content, which the advertiser failed to disclose.
• Requirement to Provide an On-Air Disclosure of AI-Generated Content. Where a Covered Entity is aware that a political ad scheduled to be aired contains AI-generated content, the NPRM would require that the Covered Entity make an on-air announcement preceding or during the ad that the ad contains such content. For radio ads, the Covered Entity would be required to include an oral announcement that "The following message contains information generated in whole or in part by artificial intelligence." For television ads, the Covered Entity would be required to either provide the above message orally or visually in font of a specified size. (The licensee would be permitted to substitute "This message" for "The following message.") As with other on-air disclosures, these announcements would have to be clear and conspicuous - i.e., they would have to be spoken at an understandable speed (radio) and appear in an intelligible size and style font (video).
• Requirement to Provide a Notice of AI-Generated Content in Political Files. Covered Entities that air political ads containing AI-generated content would be required to include a notice in their political files for any political ad containing AI-generated content. The notice would have to include the following language: "This message contains information generated in whole or in part by artificial intelligence."
• Network and Syndicated Programming Ads. The NPRM also seeks comment on whether and how to apply its proposed on-air and political file disclosure obligations to a candidate or issue ad embedded in network or syndicated programming aired by a broadcast station. Recognizing that a station may not have direct contact with an advertiser in these circumstances, the NPRM asks whether the FCC should require the station to ask the network (or syndicated programmer) about the content of the ad. To better inform any approach for potentially applying the new requirements to stations airing political ads embedded in network and syndicated programming, the NPRM seeks information about how stations currently comply with their existing political advertising and political file obligations in these contexts.
• Statutory Authority. The NPRM premises the FCC's authority to adopt the new requirements primarily on its authority to adopt rules in the public interest under Section 303(r) of the Communications Act. However, it notes that cable operators engaged in origination programming are not subject to the FCC's Section 303(r) rulemaking authority, and seeks comment on other statutory provisions (e.g., Section 315) that could provide a basis for application of the requirements to those licensees. The NPRM also acknowledges and seeks comment on the potential First Amendment concerns associated with the new requirements, but tentatively concludes that "the proposed on-air disclosure and political file requirements comport with the First Amendment right to free speech, regardless which level of scrutiny applies."

Commissioner Brendan Carr authored an extensive dissenting statement to the NPRM, arguing that it represents an effort "to fundamentally alter the regulation of political speech" to the advantage of the Democratic candidates. The dissent argues that the NPRM oversteps the FCC's statutory authority, is deficient under the Administrative Procedure Act, and would fail to address the problem it identifies. Commissioner Nathan Simington also dissented, issuing a statement discussing the flaws of seeking to impose additional asymmetric requirements on broadcasters that do not apply to online media and questioning the FCC's authority to take the proposed actions.

Comments on the NPRM will be due 30 days after its publication in the Federal Register.