WASHINGTON, D.C. — U.S. Sens. John Thune (R-S.D.), ranking member of the Subcommittee on Communications, Media, and Broadband; Mitch McConnell (R-Ky.), Senate Republican leader; Eric Schmitt (R-Mo.), member of the Senate Commerce Committee; and Ted Cruz (R-Texas), ranking member of the Senate Commerce Committee; today urged Federal Communications Commission (FCC) Chairwoman Jessica Rosenworcel to immediately abandon her unlawful proposal that infringes on free political speech. In their letter, the senators note that the FCC does not have broad authority over political advertising and that this misguided proposal would place unreasonable burdens on local broadcasters and cable companies.
“Lacking any statutory authority for the proposal under the BCRA, the FCC alternatively claims it has an amorphous public interest obligation to ‘protect the public from false, misleading, or deceptive programming and to promote an informed public.’ This falsely suggests that the FCC has broad authority to act as an arbiter of true and false speech,” wrote the senators. “The FCC’s role should remain within the confines of its designated responsibility: ensuring basic recordkeeping requirements without encroaching on the content of political discourse or favoring one type of political advertising over another.”
Full letter below:
Dear Chairwoman Rosenworcel:
We write today in opposition to your proposal to regulate artificial intelligence (AI) in political advertising. The Federal Communications Commission (FCC) has no authority to police the content of political advertising and any attempt to do so raises serious statutory and constitutional concerns. Moreover, since the proposed rules would only apply to regulated entities like broadcasters and cable companies – and not their unregulated big tech counterparts – the proposal picks winners and losers and risks confusing voters on the eve of a federal election. Rather than favoring certain political speech and interfering in the election, we urge you to abandon this dangerous proposal that threatens to tip the scales of free speech in our nation.
The FCC’s press release cites the Bipartisan Campaign Reform Act (BCRA) as its basis of legal authority for the proposal, but that law only requires licensees to maintain records of requests to purchase airtime for political advertising. It does not give the FCC authority to compel certain messages, and it certainly did not give the FCC broad authority over political advertising. As Federal Election Commission (FEC) Chairman Sean Cooksey has made clear, the FEC is the sole authority empowered to regulate political disclaimers and “nothing in the BCRA empowers the FCC to impose its own affirmative disclaimer requirements on political communications.” Any attempt to expand the authority provided by BCRA is unlawful.
Lacking any statutory authority for the proposal under the BCRA, the FCC alternatively claims it has an amorphous public interest obligation to “protect the public from false, misleading, or deceptive programming and to promote an informed public.” This falsely suggests that the FCC has broad authority to act as an arbiter of true and false speech. The FCC’s role should remain within the confines of its designated responsibility: ensuring basic recordkeeping requirements without encroaching on the content of political discourse or favoring one type of political advertising over another.
The proposal also creates asymmetric burdens that risk confusing voters. As FCC Commissioner Carr has pointed out, the disclaimer rules would apply to broadcasters but not their largely unregulated big tech counterparts. This risks “muddy[ing] the waters” for voters who “don’t think about the content they consume through the lens of regulatory silos.” This action will result in uneven application of these rules and could result in a scenario where an advertisement seen on broadcast TV includes an AI disclosure, but the same or similar advertisement offered through a media service not regulated by the FCC will not. This discrepancy does not reflect how consumers interact with media and could create misleading impressions about the content they consume. Furthermore, Americans believe in the sanctity of the marketplace of ideas and they do not want or need the government to overreach on these issues. Americans can make their own determinations after watching or hearing a political advertisement – that is not the government’s role.
Moreover, it is unreasonable to expect broadcasters to have the necessary tools or technical expertise to verify whether any of the images or sounds in a political ad have been generated with AI. Requiring broadcasters to act as gatekeepers for AI-generated content would impose an unreasonable burden on them and could result in substantial legal and operational challenges. It would also undermine local journalism at a time when broadcasters are facing enormous competitive pressures from big tech companies.
Finally, Congress conferred independence on the FCC so that it would be free from the control exercised by the president over the Executive Branch. And independent agencies were certainly never meant to serve as instruments for advancing the agendas of presidential campaigns or national committees. The proposal you are advancing aligns closely with the broader agenda advocated by the Democrat National Committee, which urged the FEC to introduce sweeping regulations governing AI-generated political speech before the 2024 elections. It is unfortunate that the FCC is behaving less like an independent commission accountable to Congress, and more as a de facto arm of the Biden campaign.
We strongly urge you to reconsider this effort to regulate AI in political advertising. Thank you for your attention to this matter.
Sincerely,