Artificial Intelligence

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  • The National Religious Broadcasters, American Family Association, and the Texas Association of Broadcasters jointly requested that the FCC stay the
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Last week, the U.S. Supreme Court overturned the longstanding Chevron doctrine, which required courts to defer to expert regulatory agencies, like the FCC, when interpreting ambiguous statutes, unless the agency acted unreasonably.  Since the decision, we have seen all sorts of TV pundits predicting the end of “the administrative state” (presumably meaning the end of the many rules passed by administrative agencies like the FCC).  In the broadcast space, we’ve heard many suggest that this might mean that the broadcast ownership rules (most recently upheld by the FCC in their December decision on the 2018 Quadrennial Review) would soon be a thing of the past.  As we wrote several months ago, when this case was argued before the Supreme Court, we think that many of these predictions are overblown.  While certainly last week’s decision gives challengers to agency decisions more ammunition to use in bringing such challenges, and likely will cause the federal courts to be flooded with more challenges generally, the decision will not end the authority of administrative agencies to adopt rules affecting businesses, nor will it bring about any immediate change in rules adopted by the FCC on complex issues affecting broadcasters, like the local radio and television ownership rules. 

First, we need to look at what the Chevron doctrine was all about.  Chevron did not deal with the power of agencies themselves to make rules, but instead it dealt with the relatively narrow question of the standards that courts should use in evaluating challenges to those rules.  Under Chevron, if an agency’s rules relied on an interpretation of arguably ambiguous Congressional legislation, the courts would defer to the agency’s interpretation of the law if that interpretation was a plausible one.  In other words, under Chevron, the agency’s interpretation of the law would stand if there was a reasonable argument that the law meant what the agency said that it did, even if a reviewing court thought that there was a better reading of the law.  So, the doctrine dealt only with issues that arose when there were arguably ambiguous statutes being interpreted by an agency like the FCC.Continue Reading Supreme Court Rejects the Chevron Doctrine – What Does it Mean for Broadcasters Regulated By the FCC? 

With the verdict in the first criminal case against former President (and now candidate) Trump having been released, we can envision a whole raft of attack ads likely to be airing before the November elections.  The verdict is likely to also increase political divisions within the country, and potentially fuel many other nasty attack ads to be aired in political races from the top of the ballot to the local races that appear toward its end.  The use of artificial intelligence in such ads raises the prospect of even nastier attack ads, and its use raises a whole host of legal issues beyond defamation worries, though it raises those too (see our article here on defamation concerns about AI generated content, and our recent articles here and here about other potential FCC and state law liability arising from such ads).  Given the potential for a nasty election season getting even nastier, we thought that we would revisit our warning about broadcasters needing to assess the content of attack ads – particularly those from non-candidate groups. 

As we have written before, broadcasters (and local cable companies) are forbidden from editing the message of a candidate or rejecting that ad based on what is says except in extreme circumstances where the ad itself would violate a federal criminal law and possibly if it contains a false EAS alert (see, for instance, our articles here, here and here).  Section 315 of the Communications Act forbids a broadcaster or a local cable operator from censoring a candidate ad.  Because broadcasters cannot censor candidate ads, the Supreme Court has ruled that broadcasters are immune from any liability for the content of those ads.  (Note that this protection applies only to over-the-air broadcasters and local cable companies – the no censorship rule does not apply to cable networks or online distribution – see our articles here and here)  Other protections, such as Section 230, may apply to candidate ads placed on online platforms, but the circumstances in which the ad became part of the program offering need to be considered. Continue Reading Trump Verdict Raises Concerns About A Nasty Election Campaign Getting Nastier – Looking at a Broadcaster’s Potential Liability for Attack Ads

We’ve written several times (see for instance our articles here, here, and here) about all of the action in state legislatures to regulate the use of artificial intelligence in political advertising – with approximately 17 states now having adopted laws or rules, most requiring the labeling of “deep fakes” in such ads, and a few banning deep fakes entirely.  Action on the federal level seems to be picking up, with two significant actions in the last week.  This week, FCC Chairwoman Jessica Rosenworcel issued a Press Release announcing that the FCC would be considering the adoption of rules requiring broadcasters and other media to include disclaimers when AI is used in political advertising. Last week, the Senate Committee on Rules and Administration considered three bills addressing similar issues.  These actions, along with a long-pending Federal Election Commission proceeding to consider labeling obligations on federal election ads (see our article here), are the federal government’s attempts to address this issue – though, with the time left before the election, none  of these proposals appear likely to have a significant effect during the current election cycle.

At the FCC, according to the Chairwoman’s Press Release, a draft Notice of Proposed Rulemaking is circulating among the Commissioners for their review.  The proposal is to require broadcasters, local cable companies, and other regulated entities with political broadcasting obligations under FCC rules, to include mandatory disclosures on political ads when AI is used.  The disclosures would be required on the air and in writing in a station’s FCC-hosted online public inspection file.  While the text of the NPRM is not yet public, the Press Release did provide some specifics as to the questions that would be asked in this proceeding.Continue Reading The FCC and Congress Advance Proposals to Regulate Artificial Intelligence in Political Advertising

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  • The FTC announced that it will hold a 45-minute webinar on May 14 at 11:00 a.m. ET to provide an
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