Advertising Issues

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With the 2024 election looming, broadcasters are already receiving requests for political advertising time, from PACs and other issue groups, and from both established candidates and newcomers eager to make an early splash to enhance their public standing.  Some of these potential buyers advance unique policy positions and, sometimes, unusual ad buying strategies.  How are broadcasters to deal with these early political ad buyers? 

Each broadcaster needs to discuss the issues that arise with these early political ads, both internally with their business teams and with their outside FCC counsel or in-house legal advisor.  The first question to ask is whether a station even wants to run these ads.  Ads from non-candidate buyers do not need to be run by stations but, if run, will likely impose some political file obligations on stations to the extent that they discuss candidates, potential candidates, or electoral and political issues (for more on political file issues, see our articles here, here, and here, and this video discussion that I did for the Indiana Broadcasters Association). Continue Reading Broadcaster’s Legal Considerations for Early Season Political Ads

The Federal Election Commission last week voted to open for public comment the question of whether to start a rulemaking proceeding to declare that “deepfakes” or other AI technology used to generate false images of a candidate doing or saying something, without a disclosure that the image, audio or video, was generated by artificial intelligence and portrays fictitious statements and actions, violates the FEC’s rules.  The FEC rule that is allegedly being violated is one that prohibits a candidate or committee from fraudulently misrepresentating that they are “speaking or writing or otherwise acting for or on behalf of any other candidate or political party or employee or agent thereof on a matter which is damaging to such other candidate or political party or employee or agent thereof.”  In other words, the FEC rule prohibits one candidate or committee from falsely issuing statements in the name of an opposing candidate or committee.  The FEC approved the Draft Notice of Availability to initiate the request for public comment on a second rulemaking petition filed by the group Public Citizen, asking for this policy to be adopted.  This Notice of Availability was published in the Federal Register today, initiating the comment period.  The deadline for comments is October 16, 2023.  This is just a preliminary request for comments as to the merits of the Public Citizen petition, and whether the FEC should move forward with a more formal proceeding.

As we wrote in an article a few weeks ago, the FEC had a very similar Notice of Availability before it last month and took no action, after apparently expressing concerns that the FEC does not have statutory authority to regulate deliberately deceptive AI-produced content in campaign ads.  Apparently Public Citizen’s second petition adequately addressed that concern.  The Notice published in the Federal Register today at least starts the process, although it may be some time before any formal rules are adopted.  As we noted in our article, a few states have already taken action to require disclosures about AI content used in political ads, particularly those in state and local elections.  Thus far, there is no similar federal requirement. Continue Reading FEC Asks for Public Comment on Petition for Rulemaking on the Use of Artificial Intelligence in Political Ads

  • FEMA and the FCC announced that this year’s Nationwide EAS Test is scheduled for October 4, 2023 (with a back-up
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  • Around this time of year, the FCC typically issues a Public Notice reminding TV broadcasters, cable operators, satellite television services,
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Stories about “deepfakes,” “synthetic media,” and other forms of artificial intelligence being used in political campaigns, including in advertising messages, have abounded in recent weeks.  There were stories about a superPAC running attack ads against Donald Trump where Trump’s voice was allegedly synthesized to read one of his tweets condemning the Iowa governor for not supporting him in his Presidential campaign.  Similar ads have been run attacking other political figures, prompting calls from some for federal regulation of the use of AI-generated content in political ads.  The Federal Election Commission last month discussed a Petition for Rulemaking filed by the public interest group Public Citizen asking for a rulemaking on the regulation of these ads.  While the FEC staff drafted a “Notification of Availability” to tell the public that the petition was filed and to ask for comments on whether the FEC should start a formal rulemaking on the subject, according to an FEC press release, no action was taken on that Notification.  A bill has also been introduced in both the Senate and the House of Representatives to require that there be disclaimers on all political ads using images or video generated by artificial intelligence revealing that they were artificially generated (see press release here).

These federal efforts to require labeling of political ads using AI have yet to result in any such regulation, but a few states have stepped into the void and adopted their own requirements.   Washington State recently passed legislation requiring the labeling of AI-generated content in political ads.  Some states, including Texas and California, already provide penalties for deepfakes that do not contain a clear public disclosure when used in political ads within a certain period before an election (Texas, within 30 days and California within 60 days).Continue Reading Artificial Intelligence in Political Ads – Legal Issues in Synthetic Media and Deepfakes in Campaign Advertising – Concerns for Broadcasters and Other Media Companies

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  • Chairwoman Rosenworcel announced that the FCC, at its open meeting on July 20, intends to allow 13 “Franken FM” or
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Though school is out for many, the FCC does not take a summer recess.  Instead, regulation continues.  While the pace of new FCC regulatory issues for broadcasters has slowed, perhaps pending the confirmation of a new Commissioner and the return of the FCC to full strength, there are still regulatory matters in June worth watching.  Some are routine, others look more to the future – but all are worth watching just the same. 

One of the routine regulatory deadlines comes on June 1, as it is the deadline for Radio and Television Station Employment Units in Arizona, District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming with 5 or more full-time employees to upload to their online public inspection file their Annual EEO Public File Report. A station employment unit is a station or cluster of commonly controlled stations serving the same general geographic area having at least one common employee.  For employment units with 5 or more full-time employees, the annual report covers hiring and employment outreach activities for the prior year.  A link to the uploaded report must also be included on the home page of a station’s website, if it has a website. Continue Reading June Regulatory Dates for Broadcasters – EEO, Rulemaking Comments, AM Congressional Hearings, and More