Carr and Former FEC Chair Question FCC Authority on AI Political Ads

FCC Commissioner Brendan Carr and former Federal Election Commission Chairman Bradley Smith disagreed with Public Knowledge CEO Chris Lewis Monday about the FCC’s authority to require disclosures on political ads created with generative AI. During a Federalist Society virtual discussion, Carr and Smith said the FCC was stepping onto the FEC’s turf and going beyond the intent of statutes giving the agency regulatory power on political ads. However, Lewis said the FCC effort would be complementary to FEC rules. “If we don't have these rules, it is critically important that those who are critical of them come up with solutions to solve this threat,” Lewis said.

Carr expressed concerns about the origin of the AI political ad proposal because it was issued amid reports that the Democratic National Committee felt that it was falling behind Republicans in using AI tech. “Is it a true concern about harms across the board from AI? Or are there more sort of partisan concerns at play here?” Carr compared AI to the beginnings of the internet and said the FCC should pursue light-touch regulation now as it did then. “We have to find the middle bowl of porridge, meaning I don't think that we should go with a total sort of fundamentalist libertarian approach to the regulation of AI, but at the same time, I think we can go way too far in terms of heavy-handed regulation before we've seen how the technology play[s] out.”

Lewis has said the FCC’s proposed rules address the potential harms of AI disinformation and are a measured step in the direction of transparency. Public Knowledge filed comments supporting the FCC’s proposal on AI political ads. “I would hope we can all agree that there should be transparency as best as we can to help folks trust the media that they're consuming and the content that they're consuming without limiting the free speech and free expression of Americans,” he said. The rules are narrowly targeted, Lewis said, and are merely an update to existing FCC rules to require political files and other disclosures.

Carr said the AI ads proposal could potentially lead to the resurrection of previously narrowed agency rules on misleading and false ads. The FCC hasn’t used those policies in many years and in 1986 eliminated several of them, but a footnote in the NPRM reaffirms that the agency holds broadcasters responsible for misleading ads, Carr said. “Although the Commission’s concern with false, misleading, or deceptive matter applies broadly," the footnote said, "our focus in the instant proceeding is on AI when used in political advertising.” The footnote references a 1960 inquiry into programming and the 1986 proceeding. This footnote, Carr said, “breathes new life into these sort[s] of 1960s policy statements” that “the FCC should become the speech police going forward."

The FCC should leave the matter to the FEC, Smith said. The FEC is one of the few federal agencies that has an even number of commissioners of both parties, which can lead to efforts to shift matters to other agencies that the FEC should handle, said Smith, who chaired that agency in 2004. He is currently chairman of the Institute for Free Speech, which filed comments opposing the FCC’s AI political ad proposal. “When one party gets frustrated with the FEC’s bipartisan makeup, they respond by trying to shift the action to another agency that doesn't really have that authority,” Smith said. He compared the FCC using its specific authority over political ad sponsorship to require AI disclosures to the Federal Reserve issuing regulations for political ads because such ads are purchased with money.

Congress should be the entity to decide on AI political ads, Carr said. “I think [Loper Bright v. Raimondo] and the Constitution would tell us it's the people's elected representatives in Congress that decide whether or not to regulate political speech.” Rep. Andrew Clyde, R-Ga., led the filing Friday of the Ending FCC Meddling in Our Elections Act (HR-9913) in a bid to bar the agency from implementing the political ads proposal or anything “substantially similar to the proposed rule.” The commission's “last-ditch effort to regulate campaign advertising before the most important election in our nation’s history is undoubtedly rooted in partisan politics,” Clyde said. “This clearly marks an abuse of regulatory authority, which is why we must prohibit Americans’ hard-earned tax dollars from funding the FCC’s misguided attempt to regulate political speech.”