Broadcasters Want AI Political Ad Rules Shelved

By requiring disclosures on broadcast and MVPD ads but not identical content shown on streaming services and social media sites, the FCC “is fishing in a pond with its back to the ocean as the Jaws theme plays,” said a joint filing from nearly every state broadcast association. Public Citizen, in support of the FCC's AI political ads proposal, argued, “There already is a vastly different landscape between online and broadcast political advertisements and posts, in regulatory and practical terms.” It added, “Action by the FCC in its area of jurisdiction -- which, obviously, is all it can do -- will tend to level the playing field,” not “create an imbalance.”

The disparity over which platforms would be required to run disclosures “likely would lead to widespread consumer confusion” among “the vast majority of prospective voters who view political ads over both traditional and social media outlets,” said DirecTV. Broadcast stations and cable systems, “make up an increasingly small slice of the video distribution ecosystem,” said Block Communications. Because the FCC’s jurisdiction” is limited to only a part of the political advertising ecosystem,” its rules “will not serve the public interest because of the consumer confusion that this regulatory asymmetry would cause,” Block said. “This is an illogical claim on its face,” said Public Citizen. “The FCC has the jurisdiction it has. That it cannot regulate outside of its jurisdiction is no reason not to regulate within it.”

NAB, DirecTV, iHeartMedia and others argued that the FCC’s proposal exceeds its authority and relies on vague statutory language giving the agency power to make rules in the public interest. The FCC’s interpretation would give it “virtually unlimited authority to regulate as it pleased, contrary to law,” said NAB. The NPRM on AI political ads doesn’t point to any provision of the Communications Act delegating authority to the FCC to adopt the proposed rules, NAB said. In other cases where the FCC “has regulated political broadcast content, it has done so under specific direction from Congress,” iHeart said. The FCC’s rulemaking authority allows it to regulate when there is a nexus between the public interest and the agency’s mission, said Public Citizen. “Such a nexus plainly exists here,” it added, pointing to the agency’s oversight of political ads.

Public Citizen also pushed back on arguments that the FCC’s proposed rules would run afoul of the U.S. Supreme Court’s major questions doctrine. That doctrine is widely seen as classifying matters as “major questions” that only Congress can decide, based in part on their economic impact, Public Citizen noted. The FCC proposal is “a modest disclosure requirement for a tiny subset of broadcast advertisements,” Public Citizen said. “Its economic impact will be miniscule; and, while it is very important to preserve democratic integrity, it is merely a pro-transparency, viewpoint-neutral disclosure requirement that does not touch on substantive political considerations.”

Numerous commenters said the proposed rules would violate the First Amendment rights of political candidates and broadcasters. Although supporters of the FCC’s NPRM have said the proposed rules are content neutral, Tech Freedom disagreed. “The Supreme Court and lower courts have been clear: Regulations that apply only to political advertisements are clearly non-neutral and therefore subject to heightened scrutiny.” The U.S. Supreme Court has a history of upholding disclosure requirements, Public Citizen said. “Appropriately tailored disclosure regimens are compatible with the First Amendment review, with disclosure a preferred remedy over prohibitions or other sorts of governmental action.”

DirecTV and numerous broadcasters said the rules were unworkable with the ways ads are purchased and their timing in a broadcast. To include the disclosures, broadcasters would either “insert the disclaimer over the spot’s content, obliterating political speech,” or “forego other ad revenue to free up the additional airtime necessary to add the required disclosures before the spots,” said the state broadcast associations. “It is unreasonable to expect local stations to know whether AI-generated content is present in political advertising placed at the network level,” said a joint filing from ABC, CBS, Fox and NBCUniversal. Stations may need to drop three 30-second ads per newscast to accommodate the extra time needed to air disclosures, said a joint filing from 10 broadcasters, including Nexstar, Gray, Cumulus and others.

The proposed rules would discourage political advertisers from using broadcast and MVPD media, said the state associations. “When they buy a thirty-second broadcast radio spot and don’t get to use the full 30 seconds for their political message, they will place their advertising on non-broadcast media that don’t have an ‘FCC speech-time tax’ on them,” the state associations said.

If the FCC adjusts its definition of AI-generated content to narrow its scope, the agency should kick off a round of comments on the revised definition, NAB said, adding that the FCC should drop the proceeding entirely. Nearly every initial commenter described the definition as too broad, and FCC Chairwoman Jessica Rosenworcel in a recent speech appeared to concede that it needed fine-tuning (see 2409270043). The Multicultural Media, Telecom and Internet Council said the agency should address the issue of AI in political ads through a working group or advisory committee. Similar rules for AI in robocalls were worked out initially through the agency’s Consumer Advisory Committee, MMTC noted. The FCC should let lawmakers handle the matter, said iHeart. “Only Congress can enact broad legislation that covers all aspects of political advertising. Accordingly, only Congress can avoid a fragmented approach and the problems it would cause.”