Proposed Rule2024-16977
Disclosure and Transparency of Artificial Intelligence-Generated Content in Political Advertisements
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Published
August 5, 2024
Effective
September 4, 2024
Issuing agencies
Federal Communications Commission
Abstract
In this document, the Federal Communications Commission (Commission or FCC) initiates a proceeding to provide greater transparency regarding the use of artificial intelligence-generated content in political advertising. Specifically, the Commission proposes to require radio and television broadcast stations; cable operators, Direct Broadcast Satellite (DBS) providers, and Satellite Digital Audio Radio Service (SDARS) licensees engaged in origination programming; and permit holders transmitting programming pursuant to section 325(c) of the Communications Act of 1934 (Act), to provide an on-air announcement for all political ads (including both candidate ads and issue ads) that contain artificial intelligence (AI)-generated content disclosing the use of such content in the ad. The Commission also propose to require these licensees and regulatees to include a notice in their online political files for all political ads that include AI-generated content disclosing that the ad contains such content.
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[Federal Register Volume 89, Number 150 (Monday, August 5, 2024)]
[Proposed Rules]
[Pages 63381-63393]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-16977]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 25, 73, and 76
[MB Docket No. 24-211; FCC 24-74; FR ID 235498]
Disclosure and Transparency of Artificial Intelligence-Generated
Content in Political Advertisements
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, the Federal Communications Commission
(Commission or FCC) initiates a proceeding to provide greater
transparency regarding the use of artificial intelligence-generated
content in political advertising. Specifically, the Commission proposes
to require radio and television broadcast stations; cable operators,
Direct Broadcast Satellite (DBS) providers, and Satellite Digital Audio
Radio Service (SDARS) licensees engaged in origination programming; and
permit holders transmitting programming pursuant to section 325(c) of
the Communications Act of 1934 (Act), to provide an on-air announcement
for all political ads (including both candidate ads and issue ads) that
contain artificial intelligence (AI)-generated content disclosing the
use of such content in the ad. The Commission also propose to require
these licensees and regulatees to include a notice in their online
political files for all political ads that include AI-generated content
disclosing that the ad contains such content.
DATES: Comments for this proceeding are due on or before September 4,
2024; reply comments are due on or before September 19, 2024.
ADDRESSES: You may submit comments, identified by MB Docket No. 24-211,
by any of the following methods:
[ssquf] Federal Communications Commission's website: <a href="https://www.fcc.gov/cgb/ecfs/">https://www.fcc.gov/cgb/ecfs/</a>. Follow the instructions for submitting comments.
[ssquf] Mail: Filings can be sent by hand or messenger delivery, by
commercial overnight courier, or by first-class or overnight U.S.
Postal Service mail (although the Commission continues to experience
delays in receiving U.S. Postal Service mail). All filings must be
addressed to the Commission's Secretary, Office of the Secretary,
Federal Communications Commission.
[ssquf] People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by email: <a href="/cdn-cgi/l/email-protection#6a2c29295f5a5e2a0c0909440d051c"><span class="__cf_email__" data-cfemail="f7b1b4b4c2c7c3b7919494d9909881">[email protected]</span></a> or phone: (202) 418-
0530 or TTY: (202) 418-0432.
For detailed instructions for submitting comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: For additional information, contact
Kathy Berthot, <a href="/cdn-cgi/l/email-protection#b7fcd6c3dfce99f5d2c5c3dfd8c3f7d1d4d499d0d8c1"><span class="__cf_email__" data-cfemail="145f75607c6d3a567166607c7b60547277773a737b62">[email protected]</span></a>, of the Media Bureau, Policy
Division, (202) 418-7454.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking (NPRM), FCC 24-74, adopted on July 10, 2024, and
released on July 25, 2024. The full text is available for public
inspection and copying during regular business hours in the FCC
Reference Center, Federal Communications Commission, 445 12th Street
SW, CY-A257, Washington, DC 20554. This document will also be available
via ECFS (<a href="http://www.fcc.gov/cgb/ecfs/">http://www.fcc.gov/cgb/ecfs/</a>). Documents will be available
electronically in ASCII, Word 97, and/or Adobe Acrobat. Alternative
formats are available for people with disabilities
[[Page 63382]]
(Braille, large print, electronic files, audio format), by sending an
email to <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="167075752326225670757538717960">[email protected]</a> or calling the Commission's Consumer and
Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432
(TTY).
Pursuant to Sec. Sec. 1.415 and 1.419 of the Commission's rules,
47 CFR 1.415, 1.419, interested parties may file comments and reply
comments on or before the dates indicated on the first page of this
document. Comments may be filed using the Commission's Electronic
Comment Filing System (ECFS).
<bullet> Electronic Filers: Comments may be filed electronically
using the internet by accessing the ECFS: <a href="https://www.fcc.gov/ecfs/">https://www.fcc.gov/ecfs/</a>.
<bullet> Paper Filers: Parties who choose to file by paper must
file an original and one copy of each filing.
<bullet> Filings can be sent by hand or messenger delivery, by
commercial courier, or by the U.S. Postal Service. All filings must be
addressed to the Secretary, Federal Communications Commission.
<bullet> Hand-delivered or messenger-delivered paper filings for
the Commission's Secretary are accepted between 8 a.m. and 4 p.m. by
the FCC's mailing contractor at 9050 Junction Drive, Annapolis
Junction, MD 20701. All hand deliveries must be held together with
rubber bands or fasteners. Any envelopes and boxes must be disposed of
before entering the building.
<bullet> Commercial courier deliveries (any deliveries not by the
U.S. Postal Service) must be sent to 9050 Junction Drive, Annapolis
Junction, MD 20701.
<bullet> Filings sent by U.S. Postal Service First-Class Mail,
Priority Mail, and Priority Mail Express must be sent to 45 L Street
NE, Washington, DC 20554.
People with Disabilities: To request materials in accessible
formats for people with disabilities (braille, large print, electronic
files, audio format), send an email to <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="d1b7b2b2e4e1e591b7b2b2ffb6bea7">[email protected]</a> or call the
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (TTY).
Paperwork Reduction Act of 1995 Analysis: This document proposes
new or modified information collection requirements. The Commission, as
part of its continuing effort to reduce paperwork burdens and pursuant
to the Paperwork Reduction Act of 1995, Public Law 104-13, invites the
general public and the Office of Management and Budget (OMB) to comment
on these information collection requirements. In addition, pursuant to
the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
see 44 U.S.C. 3506(c)(4), the Commission seeks specific comment on how
it might further reduce the information collection burden for small
business concerns with fewer than 25 employees.
Providing Accountability Through Transparency Act: Consistent with
the Providing Accountability Through Transparency Act, Public Law 118-
9, a summary of this document will be available on: https://
www.fcc.gov/proposed-rulemakings.
Synopsis
1. Recognizing the potentially beneficial use of AI in political
advertisements while keeping in mind broadcasters and other regulated
entities' statutory obligation to serve the public interest by taking
responsibility for material--including false, misleading or deceptive
material--disseminated to the public through their facilities, the
Commission initiates the NPRM to provide greater transparency regarding
the use of AI-generated content in political advertising. Specifically,
the Commission proposes to require radio and television broadcast
stations; cable operators, DBS providers, and SDARS licensees engaged
in origination programming; and permit holders transmitting programming
pursuant to section 325(c) of the Act, to provide an on-air
announcement for all political ads that include AI-generated content
disclosing the use of such content in the ad. The Commission also
proposes to require these licensees and regulatees to include a notice
in their online political files for all political ads that include AI-
generated content disclosing that the ad contains such content. To be
clear, the Commission is not proposing to ban or otherwise restrict the
use of AI-generated content in political ads. Rather, it is simply
seeking to ensure that listeners and viewers are informed when
political ads include such content so that the public can evaluate such
ads for themselves.
The FCC's Role
2. The presentation of political programming is considered an
essential element of broadcasters' obligation to serve the public
interest because of the critical role such programming plays in
fostering an informed electorate, which in turn is vital to the
effective operation of the democratic process. In keeping with this
critical role, the political programming and recordkeeping requirements
established by Congress and implemented by the Commission ensure that
candidates for elective office have access to broadcast facilities and
certain other media platforms and promote transparency about the
entities that sponsor political ads. Further, the Commission has long
recognized that broadcasters ``must assume responsibility for all
material which is broadcast through their facilities,'' ``includ[ing]
all programs and advertising material which they present to the
public,'' and ``to take all reasonable measures to eliminate any false,
misleading, or deceptive matter'' and that ``[t]his duty is personal to
the licensee and may not be delegated.''
3. Political Programming Requirements. The relevant statutory
political programming provisions applicable to broadcasters are set
forth in sections 315 and 312(a)(7) of the Communications Act of 1934,
as amended (Act). Under section 315(a), if a broadcast licensee permits
one legally qualified candidate for a public office to use its station,
it must afford all other candidates for that office an ``equal
opportunity'' to use the station. In addition, section 315(a) prohibits
broadcast licensees from censoring candidate ads. The equal
opportunities and no censorship requirements in section 315 also apply
to cable system operators, SDARS licensees, and DBS service providers
engaged in origination programming. Section 312(a)(7) requires
broadcast licensees to give legally qualified candidates for Federal
office the opportunity to purchase ``reasonable amounts of time.'' The
reasonable access provisions of section 312(a)(7) also apply to SDARS
licensees and DBS service providers engaged in origination programming,
but are not applicable to cable system operators.
4. Political Recordkeeping Requirements. The political
recordkeeping requirements serve to reinforce the statutory protections
for political programming. The Commission first adopted rules requiring
broadcast stations to maintain public inspection files documenting
requests for political advertising time more than 80 years ago, and
political file obligations have been embodied in section 315(e) of the
Act since 2002. Section 315(e)(1) requires broadcast licensees to
maintain and make available for public inspection information about
each request for the purchase of broadcast time that is made: (a) by or
on behalf of a legally qualified candidate for public office, or (b) by
an issue advertiser whose advertisement communicates a message relating
to a political matter of national importance. It is crucial that
stations maintain political files that are complete and up to date
because the information in them directly affects, among other things,
the statutory rights of opposing candidates to request equal
opportunities under section 315(a) of the Act and present
[[Page 63383]]
their positions to the public prior to an election. In addition, as the
Commission has stated, ``the disclosures included in the political file
further the First Amendment's goal of an informed electorate that is
able to evaluate the validity of messages and hold accountable the
interests that disseminate political advocacy.'' Section 315(e)(2)
specifies the kinds of records that must be maintained in political
files, and section 315(e)(3) provides that these records must be placed
in the political file ``as soon as possible'' and retained for a period
of at least two years. The Commission has also applied political file
rules to cable television system operators, DBS providers, and SDARS
licensees engaged in origination programming.
5. Sponsorship Identification Recordkeeping Requirements. Pursuant
to section 317 of the Act and Sec. 73.1212 of the Commission's rules,
broadcast stations are required to make on-air sponsorship
identification announcements when any valuable consideration is paid or
promised to them in exchange for the broadcast of program material.
Section 73.1212(e) also requires broadcast stations to comply with
certain recordkeeping requirements when the material broadcast is
``political matter or matter involving the discussion of a
controversial issue of public importance.'' The objective of the list
retention requirement is to ``preserv[e] the audience's right to know
by whom it is being persuaded.'' The Commission has extended to cable
operators that engage in origination cablecasting sponsorship
identification and recordkeeping requirements that are largely the same
as those applicable to broadcasters.
Other Federal and State Actions
6. The Federal Election Commission (FEC) currently is considering a
petition for rulemaking filed by Public Citizen requesting that the FEC
amend its rules to clarify that existing campaign law prohibiting
fraudulent misrepresentation by candidates for Federal office and their
agents applies to deliberately deceptive AI-generated content in
campaign ads or other campaign communications. To date, eleven States--
California, Idaho, Indiana, Michigan, Minnesota, New Mexico, Oregon,
Texas, Utah, Washington, and Wisconsin--have enacted legislation
regulating AI-generated ``deepfakes'' in political ads and other
campaign communications. In addition, similar legislation is awaiting
governor signature or under consideration in 28 states.
7. Notably, there are distinctions between these Federal and state
actions and our proposals in the instant proceeding. For example, the
FEC petition for rulemaking would clarify that a prohibition on
fraudulent misrepresentation in campaign ads by or on behalf of
candidates for Federal office applies to deceptive AI-generated content
in such ads, while our proposal would require on-air disclosures in ads
by or on behalf of candidates for both Federal and state offices and
issue ads that contain any AI-generated content. Our proposals are
meant to complement, not replace, this effort, which has the common
goal of ensuring an informed public. The final and proposed state
actions vary widely, and some explicitly exempt ads aired by broadcast
stations. Our proposed on-air disclosure requirement would ensure that
broadcast stations and other affected Commission licensees and
regulatees face uniform requirements.
Potential Public Interest Benefits and Harms of Using AI-Generated
Content in Political Ads
8. With recent advancements and rapid growth in generative AI
tools, the use of AI is expected to play a substantial role in the
creation of political ads in 2024 and beyond. The Commission
anticipates that the use of AI technologies in political ads could
provide a number of benefits. The use of AI-generated content could
help candidates and issue advertisers tailor their messages to specific
communities. For example, a campaign could use AI tools to generate
messages targeted to the unique concerns of certain demographics or to
produce content in the candidate's voice in multiple languages. AI
could also help to speed up and automate the generation of political
ads, enabling campaigns and issue advertisers to create new content
quickly in the final days leading up to an election. Additionally,
because new AI tools are inexpensive, require little training to use,
and are capable of generating a large volume of content, such tools
could be valuable to smaller campaigns with limited financial
resources, allowing them to reach more voters and compete more
effectively with larger, well-funded campaigns. The Commission seeks
comment on other benefits that the use of AI technologies in political
ads could provide.
9. The use of AI-generated content in political ads, however, also
creates a potential for providing deceptive, misleading, or fraudulent
information to voters. Of particular concern is the use of AI-generated
``deepfakes''--altered images, videos, or audio recordings that depict
people doing or saying things they did not actually do or say, or
events that did not actually occur. Such manipulated media could
mislead the public about candidates' assertions or positions on
particular issues or about whether certain events actually happened,
creating confusion and distrust among potential voters. Moreover, AI
tools could be used to produce convincingly false messages about where
or when to cast a ballot, or to discourage voters from showing up to
their polling locations. To be sure, deceptive political advertising is
nothing new. Even before the emergence of AI technologies, tools such
as Photoshop have been used to manipulate images used in political ads.
The advancement and widespread availability of AI tools, however, has
made it easier, faster, and less expensive to make sophisticated and
realistic ``deepfakes'' and other manipulated media, making it
increasingly more difficult for voters to discern what is real and what
is fake. The Commission seeks comment on these and other potentially
harmful effects of using AI-generated content in political ads. Do
these potentially harmful effects support Commission intervention in
order to ensure that the public is informed of the presence of AI-
generated content?
Proposed Definition of ``AI-Generated Content''
10. The Commission seeks comment on how to define ``AI-generated
content'' for purposes of this proceeding. In general, AI can encompass
a wide range of technologies and functions, and AI technologies include
programs that emulate aspects of human intelligence, such as a human
voice. While the Commission has not yet adopted a specific definition
of ``artificial intelligence,'' various organizations and statutes have
defined AI. In October 2023, President Biden's Executive Order on the
Safe, Secure, and Trustworthy Development and Use of Artificial
Intelligence (E.O. 14110, 88 FR 75191 (November 1, 2023)) drew upon a
statutory definition of AI established by the National Artificial
Intelligence Initiative in 2021 and set forth in 15 U.S.C. 9401(3),
which defines AI as ``a machine-based system that can, for a given set
of human-defined objectives, make predictions, recommendations, or
decisions influencing real or virtual environments.'' The Defense
Authorization Act of 2019 provided similar definitions of artificial
intelligence, including ``an artificial system designed to act
rationally, including a software agent or embodied
[[Page 63384]]
robot that achieves goals using perception, planning, reasoning,
learning, communication, decision making, and acting.''
11. The Commission proposes to define ``AI-generated content'' for
purposes of this proceeding as ``an image, audio, or video that has
been generated using computational technology or other machine-based
system that depicts an individual's appearance, speech, or conduct, or
an event, circumstance, or situation, including, in particular, AI-
generated voices that sound like human voices, and AI-generated actors
that appear to be human actors.'' The Commission believes this
definition would adequately encompass content artificially created for
use in political advertising. The Commission seeks comment on this
proposed definition and invites commenters to propose alternative
definitions.
Proposal To Require Broadcasters To Disclose Use of AI-Generated
Content in Political Ads
12. The Commission proposes to require that all radio and
television broadcast stations that air political ads inquire whether
political ads scheduled to be aired on their stations contain AI-
generated content and provide an on-air announcement for all such ads
disclosing the use of AI-generated content in the ad. It further
proposes to require all broadcast stations that air political ads to
include in their online political files a notice disclosing the use of
AI-generated content for each political ad that contains such content.
As discussed above, broadcasters have an obligation under the
Communications Act to operate in the public interest. Given the
potential for AI-generated content in political ads to provide false,
misleading, and/or deceptive information to the public, the Commission
seeks comment on whether requiring broadcasters to disclose the use of
AI-generated content in political ads is consistent with their
statutory obligation to serve the public interest by ensuring that
listeners and viewers have the necessary information to evaluate such
ads for themselves.
13. Notably, the Commission is not proposing to ban or restrict the
use of AI-generated content in producing political ads. Instead, it is
merely proposing that listeners and viewers be informed when a
political ad contains such content. The use of AI could help political
advertisers provide timely, accurate, and relevant information to
potential voters, or AI tools could be used to provide potential voters
misleading or deceptive information. The Commission believes that
disclosing that a political ad contains AI-generated content could help
the listening or viewing audience make informed decisions about the
information in that ad. The Commission seeks comment on this view.
14. Proposal to Require Broadcasters to Inquire Whether Political
Ads Contain AI-Generated Content. The Commission proposes to require
that all broadcast stations that air political ads inquire whether
political ads scheduled to be aired on their stations contain any AI-
generated content, as defined in this proceeding. Under this proposal,
a broadcast station would fulfill its obligation by making a simple
inquiry to the person or entity making the request for the purchase of
airtime as to whether a political ad includes AI-generated content, as
defined herein. Specifically, a broadcast station would be required to
inform the person or entity requesting airtime, at the time an
agreement is reached to air a political ad, that the station is
required to make an on-air disclosure for any political ad that
includes such AI-generated content and inquire whether the ad does in
fact include such AI-generated content. Comment is sought on this
proposal. Would such an inquiry be expected to identify all political
ads that use AI-generated content (that is, would the person or entity
making the request for airtime generally be expected to know whether
the ad was created using AI-generated content)? Are there any
additional or alternative actions that we should require broadcast
stations to take to inquire whether a political ad uses AI-generated
content? Comment is also sought on how stations should go about making
the inquiry. For example, should we require that the station's inquiry
to the person or entity making the request for the purchase of airtime
be made in writing so that there is a record of the request? What if
the person or entity requesting airtime fails to respond to a station's
inquiry? Should a station that makes a simple inquiry consistent with
the Commission's rules be deemed to have satisfied its obligations even
if there is no response to the inquiry? Additionally, there may be
instances where a station is informed by a third party that a political
ad contains AI-generated content where there was no previous
affirmative response to the station's inquiry. In these cases, should a
station be required to re-inquire with the person or entity making the
request for the purchase of airtime?
15. Proposal to Require Broadcasters to Make On-Air Announcement
Disclosing the Use of AI-Generated Content in Political Ads. In cases
where a political ad scheduled to be aired on a broadcast station
contains AI-generated content, the Commission proposes to require the
station to make an on-air announcement disclosing that the ad contains
AI-generated content. The station would be required to make the on-air
announcement immediately preceding or during the broadcast of any ad by
or on behalf of a legally qualified candidate for public office and any
issue ad that contains AI-generated content. The Commission seeks
comment on this proposal. The Commission seeks comment on whether a
disclosure immediately preceding or during the ad would be more
prominent and bring greater awareness of the fact that the ad contains
AI-generated content than a disclosure immediately following the ad.
Alternatively, The Commission seeks comment on whether broadcasters
should be permitted to air the disclosure at any time immediately
preceding, during, or immediately following the ad.
16. The Commission further proposes that broadcasters use
standardized language for the on-air disclosure. For radio ads, it
proposes that broadcasters provide an on-air announcement orally in a
voice that is clear, conspicuous, and a speed that is understandable,
stating that: ``The following message contains information generated in
whole or in part by artificial intelligence.'' For television ads, it
proposes that broadcasters provide an on-air announcement immediately
preceding or during the ad either (i) orally in a voice that is clear,
conspicuous, and at a speed that is understandable, stating that: ``The
following message contains information generated in whole or in part by
artificial intelligence'' or ``This message contains information
generated in whole or in part by artificial intelligence,''; or (ii)
visually with letters equal to or greater than four percent of the
vertical picture height for at least four seconds, stating that: ``The
following message contains information generated in whole or in part by
artificial intelligence'' or ``This message contains information
generated in whole or in part by artificial intelligence.'' To the
extent that we conclude that broadcasters should have the option to air
the disclosure immediately following the ad, this language could be
modified as appropriate to state: ``The preceding message contains
information generated in whole or in part by artificial intelligence.''
The Commission seeks comment on the proposal to require standardized
language and on the specific language that we have proposed. Is the
proposed language
[[Page 63385]]
sufficient to inform listeners and viewers that an ad's content may
require further evaluation to determine whether it contains misleading
or inaccurate information? Should the disclosure be in English, in the
primary language of the broadcast if other than English, or both?
Should television broadcasters have the option to make the on-air
disclosure either orally or visually, or should they be required to
make the disclosure both orally and visually to ensure that it is
accessible to individuals with visual or hearing impairments? In
instances where a simple inquiry to the candidate or other entity
requesting airtime reveals that there is no AI-generated content in a
political ad, the broadcaster would not be required to make any on-air
disclosure. However, the Commission seeks comment on the appropriate
actions for stations to take in cases where a station is informed by a
credible third party that a political ad contains AI-generated content
where there was no previous affirmative response to the station's
inquiry or the station received a negative response to its inquiry. In
these circumstances, should a station be required to follow up with the
purchaser of the ad and/or insert the required disclosure? The
Commission notes that candidate ads are already required to include an
on-air disclosure that the candidate has approved the ad. It seeks
comment on where the proposed on-air disclosure regarding AI-generated
content would be placed in the audio or video feed relative to the
existing disclosure.
17. Proposal to Require Broadcasters to Include in Their Political
Files a Notice Disclosing Use of AI-Generated Content in Political Ads.
The Commission also proposes to require all broadcast stations to
include in their online political files a notice disclosing the use of
AI-generated content for each political ad that contains such content.
Under this proposal, broadcasters would include a notice for each
political ad that contains AI-generated content using the same
standardized language discussed above: ``This message contains
information generated in whole or in part by artificial intelligence.''
The Commission seeks comment on this proposal. The Commission believes
that this requirement would help to foster greater transparency
regarding the use of AI-generated content in political ads by, for
example, allowing listeners, viewers, and other interested parties to
confirm which ads aired by a station contained AI-generated content.
Nevertheless, it seeks comment on whether it would be sufficient for
the broadcaster to provide only an on-air disclosure.
18. The Commission also seeks comment on whether notices of AI-
generated content included in broadcasters' political file would be
``data assets'' potentially subject to the requirements of the OPEN
Government Data Act. The OPEN Government Data Act requires agencies to
make ``public data assets'' available under an open license and as
``open Government data assets,'' i.e., in machine-readable, open
format, unencumbered by use restrictions other than intellectual
property rights, and based on an open standard that is maintained by a
standards organization. This requirement is to be implemented ``in
accordance with guidance by the Director'' of the OMB.
19. The Commission tentatively concludes that notices of AI-
generated content included in broadcasters' political files would not
constitute ``data assets'' as defined in 44 U.S.C. 3502(17). A ``data
asset'' is defined as ``a collection of data elements or data sets that
may be grouped together,'' and ``data'' as ``recorded information,
regardless of form or the media on which the data is recorded.'' Each
AI-generated content notice, however, is separate and distinct from one
another and the information contained in the political files generally
is unstructured rather than systematically arranged in a table or
database, such that the information could not readily be grouped
together in any meaningful way. The Commission tentatively concludes
therefore that, in the absence of a standardized collection form, the
proposed AI-generated content notices would not constitute a ``data
asset'' subject to the requirements of the OPEN Government Data Act.
The Commission seeks comment on this tentative conclusion.
20. Applicability of Proposed Disclosure Requirements to Political
Ads Embedded in Network or Syndicated Programming. The Commission seeks
comment on whether and how the proposed on-air and political file
disclosure requirements should be applied to a candidate or issue ad
that is embedded within a network or syndicated program aired by a
broadcast station. The Commission notes that in instances where a
political ad is embedded in network or syndicated programming, a
broadcast station airing the programming would not have direct contact
with the person or entity requesting to purchase airtime from the
network or syndication company for the political ad. In such cases, how
does a broadcast station airing the network or syndicated programming
currently comply with its obligations under the political programming
and political file rules? Does the network or syndication company
generally inform the broadcast stations airing the programming, at some
point prior to the scheduled broadcast date, that a particular program
includes a political ad? Should the Commission require broadcast
stations to make a simple inquiry to the respective network or
syndication company, at the time the network or syndication company
informs the stations airing the programming that a political ad is
embedded in a particular program, whether the ad contains AI-generated
content? Alternatively, should the Commission allow broadcast stations
to make a simple inquiry of their network and syndication partners at
specified intervals (e.g., annually or at the start of each television
season) requesting that the network or syndication company inform the
stations each time that a political ad embedded within a program
contains AI-generated content, prior to the airing of that program?
Would the network or syndication company be expected to know if a
political ad embedded within its programming contains AI-generated
content? If a simple inquiry to the network or syndication company is
unlikely to reveal whether political ads embedded in network and
syndicated programming contain AI-generated content, should we exempt
broadcast stations from complying with the proposed on-air and
political file disclosure requirements with respect to political ads
embedded in network or syndicated programming? In cases where a station
is informed by a credible third party that a political ad contains AI-
generated content where there was no previous affirmative response to
the station's inquiry, should a station be required to insert the
required disclosure? To the extent that a simple inquiry to a network
or syndication company can be expected to reveal whether political ads
embedded in network or syndicated programming contain AI-generated
content, would it be technically feasible or practical for the stations
to insert an on-air announcement disclosing that such ads contain AI-
generated content in the network or syndicated programming? If not,
should stations be exempted from complying with the proposed on-air
disclosure requirement but nevertheless required to comply with the
proposed political file disclosure requirement?
[[Page 63386]]
Extension of Proposals to Cable Operators, DBS Providers, and SDARS
Licensees That Engage in Origination Programming
21. The Commission proposes to extend the proposals for broadcast
stations discussed herein to cable operators, DBS providers, and SDARS
licensees engaged in origination programming. As discussed above,
``origination cablecasting'' is ``[p]rogramming (exclusive of broadcast
signals) carried on a cable television system over one or more channels
and subject to the exclusive control of the cable operator.''
Similarly, ``DBS origination programming'' is ``programming (exclusive
of broadcast signals) carried on a DBS facility over one or more
channels and subject to the exclusive control of the DBS provider.''
The Commission's rules do not include a definition of ``SDARS
origination programming.'' The Commission proposes to amend the rules
by adding a definition of to define ``SDARS origination programming''
as ``programming carried on a SDARS facility over one or more channels
and subject to the exclusive control of the SDARS licensee.'' The
Commission seeks comment on this proposal. Cable operators, DBS
providers, and SDARS licensees engaged in origination programming are
subject to certain public interest obligations, including political
programming and political file requirements. The Commission tentatively
conclude that the same public interest justifications that support the
proposed rules for broadcast stations apply equally to cable operators,
DBS providers, and SDARS licensees engaged in origination programming.
The Commission seeks comment on this tentative conclusion.
22. Consistent with our broadcast station proposals, cable
operators, DBS providers, and SDARS licensees, when engaged in
origination programming, would be required to inquire whether political
ads scheduled to be aired on their systems or facilities contain any
AI-generated content and provide an on-air announcement for all such
ads disclosing the use of AI-generated content in the ad. The
Commission also proposes to use the same standardized language for
disclosure of AI-generated content in political ads as proposed for
broadcast stations. Further, it proposes to require these entities to
include in their political files a notice disclosing the use of AI-
generated content in political ads they air. The Commission seeks
comment on application of these proposals to cable operators, DBS
providers, and SDARS licensees engaged in origination programming.
Extension of Proposals to Section 325(c) Permit Holders
23. The Commission proposes to extend the on-air disclosure
proposed in this proceeding to political ads broadcast pursuant to a
section 325(c) permit. A section 325(c) permit is required when an
entity produces programming in the United States but, rather than
broadcasting the programming from a U.S.-licensed station, transmits or
delivers the programming from a U.S. studio to a non-U.S. licensed
station in a foreign country and broadcasts the programming from the
foreign station with a sufficient transmission power or a geographic
location that enables the material to be received consistently in the
United States. Section 325(c) permit applications are subject to the
requirements of section 309 (applicable to applications for U.S.
station licenses). Specifically, the Commission applies ``the same
criteria for meeting the programming standards component of the public
interest, convenience, and necessity requirement to both a domestic
license proceeding under section 309 and a cross-border broadcast
license proceeding under section 325.''
24. Consistent with its proposals for U.S.-licensed broadcast
stations, the Commission proposes to require section 325(c) permit
holders to inquire whether political ads scheduled to be delivered from
their U.S. studio to a non-U.S. broadcast station contain any AI-
generated content and provide an on-air notice for all such ads
disclosing the use of AI-generated content in the ad. The Commission
proposes to use the same standardized language for on-air notices as
proposed for U.S.-licensed broadcast stations. Comment is sought on
these proposals. In addition, comment is sought on whether any of the
proposals should be modified for section 325(c) permit holders.
25. The Commission tentatively concludes that applying the same on-
air disclosure requirements proposed in this proceeding for U.S.-
licensed stations to section 325(c) permit holders would serve the
public interest because, like programming from a U.S.-licensed station,
programming transmitted or delivered by a section 325(c) permit holder
is received by audiences in the United States. Thus, the obligation to
serve the public interest by taking responsibility for material--
including false, misleading or deceptive material--disseminated to the
public through their facilities applies equally to section 325(c)
permit holders. The Commission seeks comment on this tentative
conclusion.
Statutory Authority
26. We seek comment on whether the Commission has the authority to
adopt the proposed on-air disclosure and political file requirements
for AI-generated content in political ads. Section 303(r) authorizes
the Commission, as ``public convenience, interest, or necessity
requires, . . . to make such regulation and prescribe such
restrictions, not inconsistent with law, as may be necessary to carry
out the provisions of this Act. . . .'' The Commission has relied on
its authority under section 303(r) to develop rules necessary to the
public interest. For example, the Commission relied on section 303(r),
among other general provisions of the Act, to adopt contest rules,
explaining that the presentation of false and misleading program
material, including advertising, violates a licensee's basic duty to
deal honestly with its audience and is contrary to the public interest.
The confines of a title III licensee's duty are set by the general
standard ``the public interest, convenience or necessity,'' and thus
the Commission also has authority under various sections of the Act,
including sections 307(a), 309(a), 309(k)(1)(a), and 335 (for DBS
providers) to enact rules in the public interest. We seek comment on
whether these provisions authorize us to require broadcasters, SDARS
licensees and DBS providers engaged in origination programming, and
section 325(c) permit holders to make the proposed on-air and political
file disclosures regarding AI-generated content in political ads. In
this regard, broadcasters, and SDARS licensees and DBS providers
engaged in origination programming, are subject to statutory provisions
and the Commission's rules governing political programming and
recordkeeping, the fundamental purpose of which is to foster an
informed electorate. Are the proposed on-air disclosure and political
file requirements necessary to ensure broadcasters and other regulated
entities take reasonable measures to address false, misleading, or
deceptive material and to ensure that voters have the information
needed to assess the reliability and credibility of political ads in
order to make informed decisions and therefore would serve the public
interest? Are there other statutory provisions, such as sections
303(b), 315, 317, or others, that would support adoption of the
proposed on-air disclosure and political file requirements for
broadcasters, SDARS
[[Page 63387]]
licensees, and DBS providers engaged in origination programming?
27. We note that cable operators engaged in origination programming
are not subject to the Commission's rulemaking authority under section
303(r). We seek comment on whether there are other statutory
provisions, such as sections 315 or others, that would support adoption
of the proposed on-air disclosure and political file requirements for
cable operators engaged in origination programming. Section 315 of the
Act imposes on broadcast licensees and cable operators certain
programming obligations with respect to candidate ads and recordkeeping
obligations with respect to both candidate and certain issue ads, and
these obligations have been extended to DBS providers and SDARS
licensees. Section 315(d) of the Act authorizes the Commission to
``prescribe appropriate rules and regulations to carry out the
provisions of this section'' and section 315(e) imposes certain
political record keeping requirements. We seek comment on whether the
proposed on-air disclosure and political file requirements are within
the Commission's authority under sections 315(d) and/or 315(e). Given
that section 315 imposes specific programming obligations only with
respect to candidate ads, and not issue ads, does that suggest that
this section provides authority to adopt the proposed on-air disclosure
requirements only for candidate ads? Alternatively, would the same
rationale for adopting the proposed on-air disclosure requirements for
candidate ads also justify adopting the proposed disclosure
requirements for issue ads?
First Amendment Issues
28. The Commission seeks comment on whether the proposed rules
raise First Amendment concerns, including those pertaining to
broadcasters and cable operators, DBS providers, and SDARS licensees
that engage in origination cablecasting. To the extent that our
proposed rules implicate regulated entities' First Amendment right to
free speech, there are various levels of constitutional scrutiny that
might apply. For example, content neutral restrictions on broadcasters
are subject to review under ``heightened rational basis,'' and will be
upheld if reasonably tailored to satisfy a substantial government
interest. If the proposed rules are not considered content-neutral
restrictions, then, with respect to broadcasters, the disclosure
requirements will be reviewed under intermediate scrutiny, the less
rigorous standard applied to content-based restrictions on that medium.
Under the intermediate scrutiny test, restrictions are upheld when the
government advances ``important governmental interests unrelated to the
suppression of free speech'' and does not ``burden substantially more
speech than necessary to further those interests.'' If strict scrutiny
applies, the disclosure requirements will be upheld if the government's
interest is ``compelling,'' and the rules are both ``narrowly
tailored'' to further that interest and the ``least restrictive means''
of accomplishing the desired objective. The Commission tentatively
concludes that the proposed on-air disclosure and political file
requirements comport with the First Amendment right to free speech,
regardless which level of scrutiny applies. The Commission seeks
comment on this tentative conclusion.
29. Government interest. The Commission tentatively concludes that
it has a compelling interest in providing greater transparency
regarding the use of AI-generated content in political advertising. The
Commission has long recognized that broadcasters must assume
responsibility for all material which is broadcast through their
facilities and must take reasonable measure to address any false,
misleading, or deceptive matter. In addition, at the very heart of the
political programming and recordkeeping requirements enacted by
Congress and implemented by the Commission is a recognition of the
critical role that political programming plays in fostering an informed
electorate. The need for transparency about the use of AI-generated
content is particularly pronounced when political ads intended to
influence voters are involved. Recent advancements in generative AI
technologies have led to their widespread use, and AI is expected to
play a growing role in the future production of political ads. While
the use of AI technologies to create political ads may provide
benefits, it can also result in the dissemination of deceptive,
misleading, or fraudulent information to voters.
30. The proposed on-air disclosure and political file requirements
would further the government interest in ensuring that broadcasters and
other program distributors fulfill their responsibilities regarding the
material which they relay through their facilities and take reasonable
measures to address potentially false, misleading, or deceptive
material and ensuring that the public has the information they need to
make informed decisions about the political ads that are carried.
Disclosing the use of AI-generated content in political ads is vital to
ensuring that the public can assess the substance and credibility of
the information they receive. Rather than abridging the free speech
rights of broadcasters and cable operators, DBS providers, and SDARS
licensees that engage in origination programming, the proposed on-air
disclosure and political file rules would further the goals of the
First Amendment and Communication Act by ensuring broadcasters and
other regulated entities take reasonable measures to address
potentially false, misleading, or deceptive political advertising and
enhancing the public's ability to evaluate political ads, thus
promoting an informed electorate and improving the quality of public
discourse. The Commission tentatively concludes that this interest is
sufficient to satisfy any standard of First Amendment review that may
apply and seeks comment on this analysis.
31. Tailoring. The Commission tentatively concludes that the
proposed rules are appropriately tailored to serve the government
interest. The proposed rules would require the disclosure of any
political ad that uses artificial intelligence, defined as ``an image,
audio, or video generated using computational technology or other
machine-based system that depicts an individual's appearance, speech,
or conduct, or an event, circumstance, or situation, including, in
particular, AI-generated voices that sound like human voices, and AI-
generated actors that appear to be human actors.'' Since broadcasters
and other affected Commission licensees and regulatees would be
required to make on-air and political file disclosures only in
instances where the ad contains content meeting this definition, and
would be allowed to rely on the information provided to them by the
person or entity making the request for the purchase of airtime, any
administrative burden would be modest. Accordingly, the Commission
tentatively concludes that the proposed rules are appropriately
tailored to meet any standard that might apply. The Commission seeks
comment on this analysis.
32. The Means Chosen to Accomplish the Government's Objective. The
Commission also tentatively concludes that the means chosen to
accomplish the government's objective would meet any standard of First
Amendment review that might apply. Our proposed on-air disclosure and
political file requirements would not prevent or inhibit the airing of
political ads, i.e., these requirements would not prevent anyone from
speaking. Rather, these requirements would promote the goals
[[Page 63388]]
of the First Amendment and the Communications Act by ensuring
broadcasters and other regulated entities take reasonable measures to
address potentially false, misleading, or deceptive material and
enhancing the public's ability to assess the substance and reliability
of political ads, thus fostering an informed electorate and improving
the quality of public discourse. As the Court has previously concluded,
``disclosure is a less restrictive alternative to more comprehensive
regulations of speech.'' Broadcasters and cable operators, DBS
providers, and SDARS licensees engaged in origination programming would
have the modest burdens of inquiring of the ad sponsor whether the
political ad scheduled to be aired contains an AI-generated content
and, if it does, making on-air and political file disclosures. For this
reason, the Commission anticipates the proposed rules would have little
if any impact on the decision to accept political ads containing AI-
generated content as compared to other ads. The Commission seeks
comment on this analysis.
33. In addition, the Commission tentatively concludes that the
analysis provided here applies equally to those operating pursuant to
section 325(c) permits, because there is nothing to differentiate them
from other broadcast licensees when it comes to political programming
requirements, and the governmental interest and effects on speech are
the same as to content transmitted by U.S.-licensed broadcasters and
content transmitted by section 325(c) permittees over the facilities of
a non-U.S. broadcaster.
34. The Commission also tentatively concludes that the proposed on-
air and political file disclosures would not violate the First
Amendment rights of the candidates or other entities that sponsor
political ads. These proposed rules would further the government's
compelling interest in providing greater transparency regarding the use
of AI-generated content in political advertising, ensuring that voters
have the information they need to make informed decisions about the
political ads that are carried on broadcast stations and other affected
facilities. Additionally, the Commission tentatively concludes that the
proposed rules are appropriately tailored to serve this interest. When
purchasing airtime, broadcasters or other regulated entities would
simply ask candidates and other entities that sponsor ads whether their
ad was created using AI-generated content. If the answer is yes, then
the broadcaster or regulated entity would add the necessary disclosure.
The proposed definition of AI-generated content is straightforward and
simple to apply. Thus, the administrative burden would be modest.
Finally, the Commission tentatively concludes that the means chosen to
achieve the government's objective would satisfy First Amendment
review. The proposed rules would not suppress speech by preventing or
inhibiting candidates and other entities that sponsor political ads
from using artificial intelligence to produce their ads. Rather, the
proposed disclosure requirements would promote the goals of the First
Amendment by enhancing the public's ability to evaluate the substance
and reliability of political ads, thus fostering an informed electorate
and improving the quality of public discourse. As noted above, the
Court has previously concluded that ``disclosure is a less restrictive
alternative to more comprehensive regulations of speech.'' The
Commission seeks comment on this analysis.
Cost-Benefit Analysis
35. The Commission seeks comment on the costs and benefits of our
proposed rules on broadcasters, cable operators, DBS providers, and
SDARS licensees that engage in origination programming, and section
325(c) permit holders, particularly those that are small entities. The
Commission tentatively concludes that requiring these entities to make
a simple inquiry to the candidate or other entity that requests airtime
as to whether a political ad contains AI-generated content would not
impose a significant burden on these entities. In this regard, it
expects that the candidate or other entity that requests airtime
generally would be aware whether or not a particular ad contains AI-
generated content. The Commission also tentatively concludes the
proposed rules would benefit the public by providing greater
transparency regarding the use of AI-generated content in political
ads, while imposing a modest burden on the affected entities (i.e., the
burden of making a simple inquiry as to the use of AI-generated content
and making an on-air disclosure and/or including a notice in the
political file). The Commission seeks comment on these tentative
conclusions and on other potential benefits and costs of the proposed
rules. The benefits and costs of our rules for disclosing AI-generated
content depend on the share of political advertisements for which such
disclosure would plausibly be required. The Commission thus seeks
estimates of the share of political advertisement for which disclosure
of AI-generated would be required. The Commission also seeks comment on
the cost to the affected entities of airtime for on-air disclosures
aired prior to a political ad (i.e., airtime that could otherwise be
sold to other advertisers). Given that candidate ads are already
required to include an on-air disclosure that the candidate has
approved the ad, the Commission seeks comment on any burden associated
with requiring two on-air disclosures in a single candidate ad. In
addition, it requests comment on whether there are any alternative
actions that should be taken to minimize any burdens on affected
entities, particularly on small entities. For example, should the
proposed on-air disclosure and political file requirements be limited
to political ads aired in the 60-day period leading up to a primary
election and the 90-day period leading up to a general election? Would
it significantly reduce burdens on small entities to require only an
on-air disclosure informing the public of the use of AI-generated
content, and not a separate notice in the online political file?
Digital Equity and Inclusion
36. The Commission, as part of its continuing effort to advance
digital equity for all, including people of color, persons with
disabilities, persons who live in rural or Tribal areas, and others who
are or have been historically underserved, marginalized, or adversely
affected by persistent poverty or inequality, invites comment on any
equity-related considerations and benefits (if any) that may be
associated with the issues discussed herein. Specifically, the
Commission seeks comment on how any Commission actions taken to address
the use of AI in political advertising may promote or inhibit advances
in diversity, equity, inclusion, and accessibility.
Initial Regulatory Flexibility Act Analysis
37. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), the Commission has prepared this Initial Regulatory
Flexibility Act Analysis (IRFA) of the possible significant economic
impact on a substantial number of small entities by the policies and
rules proposed in the NPRM. Written public comments are requested on
this IRFA. Comments must be identified as responses to the IRFA and
must be filed by the deadlines for comments provided in the DATES
section of this document. The Commission will send a copy of the NPRM,
including the IRFA, to the Chief Counsel for Advocacy of the Small
Business Administration (SBA). In addition, the NPRM and IRFA
[[Page 63389]]
(or summaries thereof) will be published in the Federal Register.
A. Need for, and Objectives of, the Proposed Rules
38. The presentation of political programming has long been
recognized as an essential element of broadcasters' obligation to serve
the public interest because of the critical role such programming plays
in fostering an informed electorate, which in turn is vital to the
effective operation of the democratic process. The political
programming and recordkeeping requirements established by Congress and
implemented by the Commission ensure that candidates for elective
office have access to broadcast facilities and certain other media
platforms and foster transparency about the entities that sponsor
political ads.
39. The use of emerging artificial intelligence (AI) technologies
in political ads can serve the public interest in fostering an informed
electorate by, for example, allowing candidates to tailor their
messages to specific populations or empowering smaller political
campaigns with limited financial resources to reach larger audiences.
The use of AI technologies in political advertising, however, also has
the potential to produce ``deepfakes'' and other deceptive and
misleading information, creating confusion among the voting public.
Accordingly, the Commission initiates the NPRM to further the public
interest by ensuring broadcasters and other regulated entities take
reasonable measures to address potentially false, misleading or
deceptive material and promoting an informed electorate.
40. The NPRM proposes to define ``AI-generated content'' for
purposes of this proceeding as ``an image, audio, or video that has
been generated using computational technology or other machine-based
system that depicts an individual's appearance, speech, or conduct, or
an event, circumstance, or situation, including, in particular, AI-
generated voices that sound like human voices, and AI-generated actors
that appear to be human actors.'' The NPRM also proposes to require
that all radio and television broadcast stations inquire whether
political ads scheduled to be aired on their stations contain any AI-
generated content and make an on-air announcement for all such ads
disclosing the use of AI-generated content in the ad. Under this
proposal, broadcast stations would fulfill their obligation by making a
simple inquiry to the person or entity that submits the request for the
purchase of airtime as to whether a political ad includes AI-generated
content. Further, the NPRM proposes to require that broadcasters make
the on-air disclosure at the beginning of or during the ad and use
standardized language for the disclosure and to require broadcast
stations to include in their online political files a notice, using
standardized language, disclosing the use of AI-generated content for
each political ad that contains such content. Moreover, the NPRM
proposes to extend these proposed on-air disclosure and political file
requirements to cable operators, DBS providers, and SDARS licensees
engaged in origination programming and to permit holders transmitting
programming pursuant to section 325(c) of the Act. The NPRM does not
propose to ban or otherwise restrict the use of AI-generated content in
political ads. Instead, it merely seeks to ensure that the listening
and viewing public is informed when political ads include such content.
B. Legal Basis
41. The proposed action is authorized pursuant to sections 1, 4(i),
303, 307, 309, 312, 315, 317, 325(c)-(d), and 335 of the Communications
Act of 1934, as amended, 47 U.S.C. 151, 154(i), 303, 307, 309, 312,
315, 317, 325(c)-(d), and 335.
C. Description and Estimates of the Number of Small Entities to Which
the Proposed Rules Will Apply
42. The RFA directs agencies to provide a description of and, where
feasible, an estimate of the number of small entities that may be
affected by the proposed rules, if adopted. The RFA generally defines
the term ``small entity'' as having the same meaning as the terms
``small business,'' ``small organization,'' and ``small governmental
jurisdiction.'' In addition, the term ``small business'' has the same
meaning as the term ``small business concern'' under the Small Business
Act. A small business concern is one which: (1) is independently owned
and operated; (2) is not dominant in its field of operation; and (3)
satisfies any additional criteria established by the SBA.
43. Cable Companies and Systems (Rate Regulation). The Commission
has developed its own small business size standard for the purpose of
cable rate regulation. Under the Commission's rules, a ``small cable
company'' is one serving 400,000 or fewer subscribers nationwide. Based
on industry data, there are about 420 cable companies in the U.S. Of
these, only seven have more than 400,000 subscribers. In addition,
under the Commission's rules, a ``small system'' is a cable system
serving 15,000 or fewer subscribers. Based on industry data, there are
about 4,139 cable systems (headends) in the U.S. Of these, about 639
have more than 15,000 subscribers. Accordingly, the Commission
estimates that the majority of cable companies and cable systems are
small.
44. Cable System Operators (Telecom Act Standard). The
Communications Act of 1934, as amended, contains a size standard for a
``small cable operator,'' which is ``a cable operator that, directly or
through an affiliate, serves in the aggregate fewer than one percent of
all subscribers in the United States and is not affiliated with any
entity or entities whose gross annual revenues in the aggregate exceed
$250,000,000.'' For purposes of the Telecom Act Standard, the
Commission determined that a cable system operator that serves fewer
than 498,000 subscribers, either directly or through affiliates, will
meet the definition of a small cable operator. Based on industry data,
only six cable system operators have more than 498,000 subscribers.
Accordingly, the Commission estimates that the majority of cable system
operators are small under this size standard. We note however, that the
Commission neither requests nor collects information on whether cable
system operators are affiliated with entities whose gross annual
revenues exceed $250 million. Therefore, we are unable at this time to
estimate with greater precision the number of cable system operators
that would qualify as small cable operators under the definition in the
Communications Act.
46. Direct Broadcast Satellite (DBS) Service. DBS service is a
nationally distributed subscription service that delivers video and
audio programming via satellite to a small parabolic ``dish'' antenna
at the subscriber's location. DBS is included in the Wired
Telecommunications Carriers industry which comprises establishments
primarily engaged in operating and/or providing access to transmission
facilities and infrastructure that they own and/or lease for the
transmission of voice, data, text, sound, and video using wired
telecommunications networks. Transmission facilities may be based on a
single technology or combination of technologies. Establishments in
this industry use the wired telecommunications network facilities that
they operate to provide a variety of services, such as wired telephony
services, including Voice over internet Protocol (VoIP) services, wired
(cable) audio and video programming distribution; and wired broadband
internet services. By exception, establishments providing satellite
[[Page 63390]]
television distribution services using facilities and infrastructure
that they operate are included in this industry.
47. The SBA small business size standard for Wired
Telecommunications Carriers classifies firms having 1,500 or fewer
employees as small. U.S. Census Bureau data for 2017 show that 3,054
firms operated in this industry for the entire year. Of this number,
2,964 firms operated with fewer than 250 employees. Based on this data,
the majority of firms in this industry can be considered small under
the SBA small business size standard. According to Commission data
however, only two entities provide DBS service--DIRECTV (owned by AT&T)
and DISH Network, which require a great deal of capital for operation.
DIRECTV and DISH Network both exceed the SBA size standard for
classification as a small business. Therefore, we must conclude based
on internally developed Commission data, in general DBS service is
provided only by large firms.
48. Radio Stations. This industry is comprised of ``establishments
primarily engaged in broadcasting aural programs by radio to the
public.'' Programming may originate in their own studio, from an
affiliated network, or from external sources. The SBA small business
size standard for this industry classifies firms having $41.5 million
or less in annual receipts as small. U.S. Census Bureau data for 2017
show that 2,963 firms operated in this industry during that year. Of
this number, 1,879 firms operated with revenue of less than $25 million
per year. Based on this data and the SBA's small business size
standard, we estimate a majority of such entities are small entities.
49. The Commission estimates that as of March 31, 2024, there were
4,427 licensed commercial AM radio stations and 6,663 licensed
commercial FM radio stations, for a combined total of 11,090 commercial
radio stations. Of this total, 11,088 stations (or 99.98%) had revenues
of $41.5 million or less in 2022, according to Commission staff review
of the BIA Kelsey Inc. Media Access Pro Database (BIA) on April 4,
2024, and therefore these licensees qualify as small entities under the
SBA definition. In addition, the Commission estimates that as of March
31, 2024, there were 4,320 licensed noncommercial (NCE) FM radio
stations, 1,960 low power FM (LPFM) stations, and 8,913 FM translators
and boosters. The Commission however does not compile, and otherwise
does not have access to financial information for these radio stations
that would permit it to determine how many of these stations qualify as
small entities under the SBA small business size standard.
Nevertheless, given the SBA's large annual receipts threshold for this
industry and the nature of radio station licensees, we presume that all
of these entities qualify as small entities under the above SBA small
business size standard.
50. We note, however, that in assessing whether a business concern
qualifies as ``small'' under the above definition, business (control)
affiliations must be included. Our estimate, therefore, likely
overstates the number of small entities that might be affected by our
action, because the revenue figure on which it is based does not
include or aggregate revenues from affiliated companies. In addition,
another element of the definition of ``small business'' requires that
an entity not be dominant in its field of operation. We are unable at
this time to define or quantify the criteria that would establish
whether a specific radio or television broadcast station is dominant in
its field of operation. Accordingly, the estimate of small businesses
to which the rules may apply does not exclude any radio or television
station from the definition of a small business on this basis and is
therefore possibly over-inclusive. An additional element of the
definition of ``small business'' is that the entity must be
independently owned and operated. Because it is difficult to assess
these criteria in the context of media entities, the estimate of small
businesses to which the rules may apply does not exclude any radio or
television station from the definition of a small business on this
basis and similarly may be over-inclusive.
51. Television Broadcasting. This industry is comprised of
``establishments primarily engaged in broadcasting images together with
sound.'' These establishments operate television broadcast studios and
facilities for the programming and transmission of programs to the
public. These establishments also produce or transmit visual
programming to affiliated broadcast television stations, which in turn
broadcast the programs to the public on a predetermined schedule.
Programming may originate in their own studio, from an affiliated
network, or from external sources. The SBA small business size standard
for this industry classifies businesses having $41.5 million or less in
annual receipts as small. 2017 U.S. Census Bureau data indicate that
744 firms in this industry operated for the entire year. Of that
number, 657 firms had revenue of less than $25,000,000. Based on this
data we estimate that the majority of television broadcasters are small
entities under the SBA small business size standard.
52. As of March 31, 2024, there were 1,382 licensed commercial
television stations. Of this total, 1,263 stations (or 91.4%) had
revenues of $41.5 million or less in 2022, according to Commission
staff review of the BIA on April 4, 2024, and therefore these licensees
qualify as small entities under the SBA definition. In addition, the
Commission estimates as of March 31, 2024, there were 383 licensed
noncommercial educational (NCE) television stations, 379 Class A TV
stations, 1,829 low power television (LPTV) stations and 3,118 TV
translator stations. The Commission, however, does not compile and
otherwise does not have access to financial information for these
television broadcast stations that would permit it to determine how
many of these stations qualify as small entities under the SBA small
business size standard. Nevertheless, given the SBA's large annual
receipts threshold for this industry and the nature of these television
station licensees, we presume that all of these entities qualify as
small entities under the above SBA small business size standard.
53. Wired Telecommunications Carriers. The U.S. Census Bureau
defines this industry as establishments primarily engaged in operating
and/or providing access to transmission facilities and infrastructure
that they own and/or lease for the transmission of voice, data, text,
sound, and video using wired communications networks. Transmission
facilities may be based on a single technology or a combination of
technologies. Establishments in this industry use the wired
telecommunications network facilities that they operate to provide a
variety of services, such as wired telephony services, including VoIP
services, wired (cable) audio and video programming distribution, and
wired broadband internet services. By exception, establishments
providing satellite television distribution services using facilities
and infrastructure that they operate are included in this industry.
Wired Telecommunications Carriers are also referred to as wireline
carriers or fixed local service providers.
54. The SBA small business size standard for Wired
Telecommunications Carriers classifies firms having 1,500 or fewer
employees as small. U.S. Census Bureau data for 2017 show that there
were 3,054 firms that operated in this industry for the entire year. Of
this number, 2,964 firms operated with fewer than 250 employees.
Additionally, based on Commission data in the 2022 Universal Service
Monitoring Report, as of December 31,
[[Page 63391]]
2021, there were 4,590 providers that reported they were engaged in the
provision of fixed local services. Of these providers, the Commission
estimates that 4,146 providers have 1,500 or fewer employees.
Consequently, using the SBA's small business size standard, most of
these providers can be considered small entities.
D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
55. The rule changes proposed in the NPRM, if adopted, would impose
compliance and recordkeeping obligations on small, as well as other
entities. Specifically, the NPRM proposes to require broadcast
stations, cable operators, SDARS licensees, and DBS providers engaged
in origination programming, and section 325(c) permit holders, to make
a simple inquiry to the candidate or other entity that requests airtime
as to whether a political ad contains AI-generated content and provide
on air-disclosures informing listeners and viewers that such ads
contain AI-generated content. The NPRM further proposes to require that
broadcast stations, and cable operators, SDARS licensees, and DBS
providers engaged in origination programming, include a notice in their
online political files for all political ads that include AI-generated
content disclosing that the ad contains such content.
56. At this time the record does not include sufficient cost/
benefit analyses to allow the Commission to quantify the costs of
compliance for small entities including whether it will be necessary
for small entities to hire professionals to comply with the proposed
rules if adopted. The Commission expects, however, that the proposed
rules would impose only a modest burden on the affected entities (i.e.,
the burden of making a simple inquiry as to the use of AI-generated
content and making an on-air disclosure and/or including a notice in
the political file), because the candidates or entities requesting
airtime should be aware of whether the ad which they seek to have aired
contains AI-generated content. The NPRM nevertheless seeks comment,
particularly for small entities, on the costs and burdens of the
proposed rules and whether there are any actions it should take to
minimize any burdens on small entities.
E. Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
57. The RFA requires an agency to describe any significant,
specifically small business, alternatives that it has considered in
reaching its proposed approach, which may include the following four
alternatives (among others): (1) the establishment of differing
compliance or reporting requirements or timetables that take into
account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance and
reporting requirements under the rule for such small entities; (3) the
use of performance, rather than design, standards; and (4) an exemption
from coverage of the rule, or any part thereof, for small entities.
58. An alternative option that may reduce burdens on small entities
considered in the NPRM is whether to limit the proposed on-air
disclosure and political file requirements to political ads aired in
the 60-day period leading up to a primary election and the 90-day
period leading up to a general election. The NPRM also considers
whether requiring only an on-air disclosure informing the public of the
use of AI-generated content, and not a separate notice in the online
political file, would significantly reduce burdens on small entities.
To assist in its evaluation of the economic impact of the proposed
rules on small entities, and to better explore options and
alternatives, the Commission seeks comment on whether any of the
burdens associated with the compliance and recordkeeping requirements
described above can be minimized for small entities. The Commission
expects to more fully consider the economic impact and alternatives for
small entities based on its review of the record and any comments filed
in response to the NPRM and this IRFA.
F. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rule
59. None.
Ordering Clauses
60. It is ordered that, pursuant to the authority found in sections
1, 4(i), 303, 307, 309, 312, 315, 317, 325(c)-(d), and 335 of the
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 303,
307, 309, 312, 315, 317, 325(c)-(d), and 335, the Notice of Proposed
Rulemaking IS ADOPTED.
62. It is further ordered that, pursuant to applicable procedures
set forth in Sec. Sec. 1.415 and 1.419 of the Commission's rules, 47
CFR 1.415, 1.419, interested parties may file comments on the Notice of
Proposed Rulemaking in MB Docket No. 24-211 on or before thirty (30)
days after publication in the Federal Register and reply comments on or
before forty-five (45) days after publication in the Federal Register.
List of Subjects in 47 CFR Parts 25, 73, and 76
Radio, Reporting and recordkeeping requirements, Satellites,
Television.
Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer.
For the reasons discussed herein, the Federal Communications
Commission proposes to amend 47 CFR parts 25, 73, and 76 as follows:
PART 25--SATELLITE COMMUNICATIONS
0
1. The authority citation for part 25 continues to read as follows:
Authority: 47 U.S.C. 154, 301, 302, 303, 307, 309, 310, 319,
332, 605, and 721, unless otherwise noted.
0
2. Amend Sec. 25.701 by:
0
a. Adding paragraph (b)(5); and
0
b. Redesignating paragraph (d)(4) as paragraph (d)(5); and
0
c. Adding new paragraph (d)(4).
The additions read as follows:
Sec. 25.701 Other DBS Public interest obligations.
* * * * *
(b) * * *
(5) Disclosure of artificial intelligence-generated content in
political advertising. (i) Artificial intelligence-generated content is
defined for purposes of this section as set forth in Sec. 73.1945(a)
of this chapter.
(ii) Political advertising is defined for purposes of this section
as set forth in Sec. 73.1945(b) of this chapter.
(iii) Each DBS provider engaged in origination programming must
inquire whether any political advertising scheduled to be aired on its
facilities contains any artificial intelligence-generated content. Such
inquiry shall be made, in writing to the person or entity making the
request for the purchase of political advertising time, at the time
that an agreement is reached to air the political advertising on the
DBS provider's facilities.
(iv) If a DBS provider's inquiry pursuant to paragraph (b)(5)(iii)
of this section finds that any political advertising scheduled to be
aired on its facilities contains any artificial intelligence-generated
content, the DBS provider must make an on-air announcement, immediately
preceding or during the airing of the advertising, stating: ``[The
following] or [This] message contains information generated in whole or
in part by artificial intelligence.'' The on-air announcement
[[Page 63392]]
may be provided either orally in a voice that is clear, conspicuous,
and at a speed that is understandable, or visually with letters equal
to or greater than four percent of the vertical picture height for at
least four seconds.
* * * * *
(d) * * *
(4) In the case of political advertising, as defined in Sec.
73.1945(b) of this chapter, found by inquiry from a DBS provider
engaged in origination program to contain any artificial intelligence-
generated content, as defined in Sec. 73.1945(a) of this chapter, the
DBS provider shall place in the online political file a notice stating
that ``This message contains information generated in whole or in part
by artificial intelligence.''
* * * * *
0
3. Amend Sec. 25.702 by:
0
a. Revising paragraph (a); and
0
b. Redesignating paragraph (b)(4) as paragraph (b)(5); and
0
c. Adding new paragraph (b)(4).
The revisions and additions read as follows:
Sec. 25.702 Other SDARS Public interest obligations.
(a) Political broadcasting requirements. The following political
broadcasting rules shall apply to all SDARS licensees: 47 CFR 73.1940,
73.1941, 73.1942, 73.1944, and 73.1945. SDARS origination programming
is defined as programming carried on a SDARS facility over one or more
channels and subject to the exclusive control of the SDARS licensee.
(b) * * *
(4) In the case of political advertising, as defined in Sec.
73.1945(b) of this chapter, found by inquiry from a SDARS licensee
engaged in origination program to contain any artificial intelligence-
generated content, as defined in Sec. 73.1945(a) of this chapter, the
SDARS licensee shall place in the online political file a notice
stating that ``This message contains information generated in whole or
in part by artificial intelligence.''
* * * * *
PART 73--RADIO BROADCAST SERVICES
0
4. The authority citation for part 73 continues to read as follows:
Authority: 47 U.S.C. 154, 155, 301, 303, 307, 309, 310, 334,
336, 339.
0
5. Amend Sec. 73.1943 by redesignating paragraph (d) as paragraph (e)
and adding new paragraph (d) to read as follows:
Sec. 73.1943 Political file.
* * * * *
(d) In the case of political advertising, as defined in Sec.
73.1945(b), found by the licensee's inquiry to contain any artificial
intelligence-generated content, as defined in Sec. 73.1945(a), the
licensee shall place in the online political file a notice stating that
``This message contains information generated in whole or in part by
artificial intelligence.''
* * * * *
0
6. Add Sec. 73.1945 to read as follows:
Sec. 73.1945 Disclosure of artificial intelligence-generated content
in political advertising.
(a) Artificial intelligence (AI)-generated content is defined for
purposes of this section as an image, audio, or video that has been
generated using computational technology or other machine-based system
that depicts an individual's appearance, speech, or conduct, or an
event, circumstance, or situation, including, in particular, AI-
generated voices that sound like human voices, and AI-generated actors
that appear to be human actors.
(b) Political advertising is defined for purposes of this section
as:
(1) Advertising that is made by or on behalf of a legally qualified
candidate for public office; or
(2) Issue advertising. Issue advertising is defined for purposes of
this section as paid political programming that communicates a message
relating to any political matter or controversial issue of public
importance, but does not include advertising that is made by or on
behalf of a legally qualified candidate for public office.
(c) Each licensee must inquire whether any political advertising
scheduled to be aired on its station contains any artificial
intelligence-generated content. Such inquiry shall be made in writing
to the person or entity making the request for the purchase of
political advertising time, at the time that an agreement is reached to
air the political advertising on the station.
(d) If a licensee's inquiry pursuant to paragraph (c) of this
section finds that any political advertising scheduled to be aired on
its station contains any artificial intelligence-generated content, the
licensee must make an on-air announcement, immediately preceding or
during the airing of the advertising, stating: ``[The following] or
[This] message contains information generated in whole or in part by
artificial intelligence.'' For radio stations, the on-air announcement
must be provided orally in a voice that is clear, conspicuous, and at a
speed that is understandable. For television stations, the on-air
announcement may be provided either orally in a voice that is clear,
conspicuous, and at a speed that is understandable, or visually with
letters equal to or greater than four percent of the vertical picture
height for at least four seconds.
PART 76--MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE
0
7. The authority citation for part 76 continues to read as follows:
Authority: 47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303,
303a, 307, 308, 309, 312, 315, 317, 325, 335, 338, 339, 340, 341,
503, 521, 522, 531, 532, 534, 535, 536, 537, 543, 544, 544a, 545,
548, 549, 552, 554, 556, 558, 560, 561, 562, 571, 572, 573.
0
8. Add Sec. 76.207 to read as follows:
Sec. 76.207 Disclosure of artificial intelligence-generated content
in political advertising.
(a) Artificial intelligence (AI)-generated content is defined for
purposes of this section as an image, audio, or video that has been
generated using computational technology or other machine-based system
that depicts an individual's appearance, speech, or conduct, or an
event, circumstance, or situation, including, in particular, AI-
generated voices that sound like human voices, and AI-generated actors
that appear to be human actors.
(b) Political advertising is defined for purposes of this section
as:
(1) Advertising that is made by or on behalf of a legally qualified
candidate for public office; or
(2) Issue advertising. Issue advertising is defined for purposes of
this section as paid political programming that communicates a message
relating to any political matter or controversial issue of public
importance, but does not include advertising that is made by or on
behalf of a legally qualified candidate for public office.
(c) Each cable television system operator must inquire whether any
political advertising scheduled to be aired on its system contains any
artificial intelligence-generated content. Such inquiry shall be made
in writing to the person or entity making the request for the purchase
of political advertising time, at the time that an agreement is reached
to air the political advertising on the system.
(d) If a cable television system operator's inquiry pursuant to
paragraph (c) of this section finds that any political advertising
scheduled to be aired on its station contains any artificial
intelligence-generated content, the operator must make an on-air
announcement, immediately preceding
[[Page 63393]]
or during the airing of the advertising, stating: ``[The following] or
[This] message contains information generated in whole or in part by
artificial intelligence.'' The on-air announcement may be provided
either orally in a voice that is clear, conspicuous, and at a speed
that is understandable, or visually with letters equal to or greater
than four percent of the vertical picture height for at least four
seconds.
0
9. Amend Sec. 76.1701 by redesignating paragraphs (d) and (e) as
paragraphs (e) and (f) and adding new paragraph (d) to read as follows:
Sec. 76.1701 Political file.
* * * * *
(d) In the case of political advertising, as defined in Sec.
73.1945(b) of this chapter, found by inquiry from a cable operator
engaged in origination cablecasting to contain any artificial
intelligence-generated content, as defined in Sec. 73.1945(a) of this
chapter, the cable operator shall place in the online political file a
notice stating that ``This message contains information generated in
whole or in part by artificial intelligence.''
* * * * *
[FR Doc. 2024-16977 Filed 8-2-24; 8:45 am]
BILLING CODE 6712-01-P
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