Can the Federal Communications Commission Preempt State AI Laws? A Review of the Communications Act and Interpreting Caselaw

Efforts to regulate Artificial Intelligence at the state level are proliferating like mushrooms after it rains. Unfortunately, given the lack of a clear statement by Congress that the federal government can preempt such state AI laws, current legal options to stop the proliferation of state AI regulation are shaky at best. Grasping for straws, the Trump AI Action Plan offers the following legal strategy to stop the legislative proliferation: the Federal Communications Commission should “evaluate whether state AI regulations interfere with the agency’s ability to carry out its obligations and authorities under the Communications Act of 1934.” As detailed below, given the plain language of the Communications Act as well as the present state of the caselaw, it is highly unlikely the FCC will succeed in these efforts. Thus, to prevent AI being subject to a patchwork of state laws, Congress should move expeditiously to enact a cohesive federal AI framework that can preempt such laws.