Comment by James E. Dunstan

The FCC’s statutory authority doesn’t extend to regulating AI. The AI NPRM makes much of the FCC’s history in regulating access to the airwaves for political advertising. Of course the Communications Act of 1934 authorized such regulation. Where the FCC has gone off the rail is in reading things into the Communications Act that simply aren’t there. If the FCC proceeds, such a rule would likely be subject to ‘heightened scrutiny’—if not strict scrutiny, then at least exacting scrutiny. It would be difficult for the FCC to justify the proposed rule under either standard. As the use of AI becomes increasingly common, the rule will sweep in more and more speech; it is very far from being narrowly tailored. Moreover, courts have been skeptical of claims that the government has a legitimate interest in protecting voters from false political speech. Unverified source (2024)