In July, the White House released Winning the Race, America’s AI Plan, that described the administration’s view of the role that government will have in the future of AI. Under the section titled Recommended Policy Actions, the White House envisions the following role for the FCC:

Led by the Federal Communications Commission (FCC), evaluate whether state AI regulations interfere with the agency’s ability to carry out its obligations and authorities under the Communications Act of 1934.

I’ve been thinking about this directive since the report was released, trying to envision exactly what it means, particularly the reference to the Communications Act of 1934. There are already a handful of ways that the FCC has gotten involved with AI:

• Addressing AI-generated Robocalls: The FCC has issued rulings clarifying that AI-generated voice calls fall under existing robocall restrictions, requiring prior express consent from the recipient. The agency has also levied fines against companies using AI-generated robocalls.
• Political Advertising and Transparency: The FCC has proposed rules to mandate disclosures when AI is used to generate content in political advertisements broadcast on radio and television.
• Spectrum Management and Innovation: The FCC is investigating how AI can be leveraged for better spectrum utilization and management. This includes exploring using AI to analyze spectrum usage data, potentially leading to more efficient allocation and sharing of wireless frequencies.

All of these efforts seem to fall within the FCC’s regulatory authority, which stems back to the Communications Act of 1934. But it’s hard to envision an FCC role beyond issues that it already regulates.

Subsequent to the announced AI plan, the Administration announced that the FCC is also being tasked to review State regulation of AI, and Chairman Brendan Carr announced on July 24 that it’s possible the FCC would preempt state AI regulations. This announcement perplexes me, because I can’t think of any authority that would allow the FCC to preempt State AI regulations.

The only way for the FCC to preempt state regulation of AI is if the FCC asserts federal regulation over AI. That would be contrary to the overall philosophy of the current FCC, which changed the tenor of broadband regulation starting when the FCC under Chairman Ajit Pai made it clear that the FCC has no role in regulating broadband and made it clear that broadband is not a telecommunications service. The FCC even went so far as to hand off some remaining broadband regulations to the FTC. Chairman Carr has openly agreed with this interpretation of the FCC’s authority over broadband.

Since the FCC has elected to not regulate broadband, I don’t see how it can regulate AI. The only tie between AI and the FCC is that AI rides fiber connections to get to and from data centers and customers. As such, AI is a service that uses broadband, but is clearly not broadband. The best analogy to AI from a regulatory perspective is that it is essentially the same as cloud services like Amazon AWS that ride fiber paths. I can’t recall any discussion ever of FCC authority to regulate cloud services.

To further confound the issue, the long-standing arrangement between States and the federal government is that States are free to regulate anything that the federal government chooses not to regulate. The recent AI report makes it clear that the Administration doesn’t think AI should be heavily regulated, even though some in Congress have some different ideas on the question.

The Chairman’s announcement makes it clear that the FCC is going to try to preempt state AI regulations that the federal government doesn’t like. But it seems certain that any attempt by the FCC to do so will end up in protracted legal battles. The National Conference of State Legislatures reported recently that all 50 states, Puerto Rico, the Virgin Islands, and Washington D.C. have passed or introduced AI legislation – so the FCC will have a tall task, and a lot of states willing to push back on any FCC attempt to preempt state legislatures.