Artificial Intelligence

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After postponing consideration of a proposal (which we wrote about here) from the Republican Commissioners at the Federal Election Commission to reject calls for a rulemaking to look at whether to require that there be labeling of political ads generated by artificial intelligence that falsely depicts a candidate, the AI item is back on…

  • The FCC released its Second Report and Order setting the annual regulatory fees that broadcasters must pay for 2024. 
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It seems like virtually every panel at every broadcast and media convention, at some point, ends up involving a discussion of Artificial Intelligence. Sessions on AI are filled to capacity, and sessions unrelated to the topic seem to have to mention AI to appear relevant.  Whenever there is a topic that so thoroughly takes over the conversation in the industry, we lawyers tend to consider the legal implications.  We’ve written several times about AI in political ads (see, for instance, our articles here, here and here).  We will, no doubt, write more about that subject (including addressing further action in the FCC’s proceeding on this subject about which we wrote here, on the Federal Election Commission’s pending action on its separate AI proceeding, consideration of which was again postponed at its meeting last week, and on bills pending in Congress to address AI in political advertising). 

We’ve also written about concerns when AI is used to impersonate celebrities and to create music that too closely resembles copyrighted recordings (see, for instance, our articles here and here).  When looking for new creative ways to entertain your audience, a broadcaster may be tempted to use AI’s ability to have a celebrity “say” something on your station by generating their voice with some form of AI.  As we noted in our previous articles, celebrities have protected interests in their identity in many states, and there has been much recent activity, caused by the advent of easily accessible generative AI that can impersonate anyone, to broaden the protections for the voice, image, and other recognizable traits of celebrities.  A federal NO FAKES Act has also been introduced to give individuals more rights in their voice and likeness.  So being too creative with the use of AI can clearly cause concerns.Continue Reading Using Artificial Intelligence in Developing Broadcast Programming – Watch for Legal Issues

It is time for our update on the coming month’s regulatory dates and deadlines to which broadcasters should be paying attention – and the deadline that probably is most important to all commercial broadcasters is not yet known.  That, of course, is the deadline for the payment of annual regulatory fees – which must be made before the federal government’s October 1 start of the new fiscal year.  We expect an announcement of the final decision on the amount of those fees for various broadcasters, and the deadlines for payment, in the next few days.  Keep on the alert for that announcement.

A second big date for all commercial broadcasters is September 6, when the lowest unit rate period for political candidate advertising – the “political window” – opens for the November 5 general election.  During this 60-day period prior to the general election, legally qualified candidates buying advertising on a broadcast station get the lowest rate for a spot that is then running on the station within the same class of advertising time and in the same daypart (see our article here on the basics of computing LUR).  Candidates also get the benefit of all volume discounts without having to buy in volume – i.e., the candidate gets the same rate for buying one spot as the station’s most favored advertiser gets for buying hundreds of spots of the same class.  For a deeper dive on how to prepare for the November general election, see our post, here, which also includes a link to our comprehensive Political Broadcasting Guide. Continue Reading September 2024 Regulatory Dates for Broadcasters – FCC Regulatory Fees, LUC Window for the General Election, Comment Deadlines on AI in Political Advertising and More

  • Some of the big news for broadcasters this week came not from the FCC, but from the Federal Trade Commission:
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  • The FCC announced that oppositions are due August 27 in response to the National Association of Broadcasters’ petition for reconsideration
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The agenda for the Federal Election Commission’s August 15 Open Meeting was released last week, and it contains a proposed Notification of Disposition of the FEC’s review of a July 2023 petition for rulemaking filed by the advocacy group Public Citizen seeking to initiate a proceeding to address the use of Artificial Intelligence in campaign communications.  The FEC asked for public comment on that petition last August (see our article here).  The draft Notification and accompanying memorandum circulated by the three Republican members of the FEC proposes to deny the request to initiate such a proceeding.  As the FEC has equal representation of Democrats and Republicans, even if all of the Democrats disagree with the position advocated in the Notification, it would appear that the proposal would still be on hold for the foreseeable future as there would not be a majority of Commissioners necessary to move it forward.

The Public Citizen petition asked that the FEC “clarify that the [Federal Election Campaign Act’s prohibitions] against ‘fraudulent misrepresentation’ (52 U.S.C. § 30124) applies to deliberately deceptive AI-produced content in campaign communications.”  The draft Notification finds that the FEC lacks the statutory authority to initiate the proceeding – that the fraudulent misrepresentation language applies to a misrepresentation of a sponsor of a campaign ad, not to misleading messages in the ads themselves.  The Notice also contends that the FEC is “ill-positioned to take on the issue of AI regulation and does not have the technical expertise required to design appropriately tailored rules for AI-generated advertising.”  The draft notice suggests that, before any action is taken by the FEC, Congress must first authorize it.   Continue Reading FEC Appears Ready to Take a Pass on Regulating AI in Political Ads

  • The FCC’s Public Safety and Homeland Security Bureau announced that October 4 is the deadline for EAS Participants to file
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Last week, the FCC released a Notice of Proposed Rulemaking that was first announced by the FCC Chairwoman three months ago (see our article here), proposing to require that the use of artificial intelligence in political advertising be disclosed when it airs on broadcast stations, local cable systems, or satellite radio or TV.  This proposal has been controversial, even before the details were released, with many (including the Chair of the Federal Election Commission and some in Congress) questioning whether the FCC had the authority to adopt rules in this area, and also asking whether it would be wise to adopt rules so close to the upcoming election (the Chairwoman had indicated an interest in completing the proceeding so that rules could be in place before November’s election).  The timing of the release of the NPRM seems to rule out any new rules becoming effective before this year’s election (see below), and the NPRM itself asks questions as to whether the FCC’s mandate to regulate in the public interest and other specific statutory delegations of power are sufficient to cover regulation in this area.  So, these fundamental questions are asked, along with many basic questions of how any obligation that would be adopted by the Commission would work. 

The FCC is proposing that broadcasters and the other media it regulates be required to transmit an on-air notice (either immediately before, after, or during a political ad) to identify an ad that was created in whole or in part using AI.  In addition, broadcasters and other media subject to the rule would need to upload a notice to their online public files identifying any political ads that were created using AI.  The NPRM sets forth many questions for public comment – and also raises many practical and policy issues that will need to be considered by the FCC and the industry in evaluating these proposals.Continue Reading The FCC Proposes Requirements for Disclosures About the Use of Artificial Intelligence in Political Ads – Looking at Some of the Many Issues for Broadcasters