Volume 78.3 Full Issue

The Federal Communications Law Journal is proud to present the third and final issue of Volume 78. FCLJ is the nation’s premier communications law journal and the official journal of the Federal Communications Bar Association (FCBA). Over the course of Volume 78’s publication, we have had the opportunity to highlight articles and student Notes that showcase the diverse range of issues in the fields of technology and communications law.

This Issue begins with an Article from Lawrence J. Spiwak, Esq. The Article analyzes the Federal Communication Commission’s (FCC) historic preemption authority and applies the existing framework to future efforts by the FCC to preempt state-level artificial intelligence (AI) regulation.

This Issue also features three student Notes. Each Note proposes novel solutions to emerging technology, communications and political speech issues.

First, Maya Lilly urges the Supreme Court to recognize a right for pre-trial detainees to receive voter information, arguing this right is rooted in the First Amendment similarly to a detainee’s access to courts.

Second, Nako Caternor addresses explicit deepfake content and the current difficulties victims face when attempting to remove deepfake content from online platforms. The Note suggests that creating a federal right of publicity could remedy this problem without running afoul of Section 230 of the Communications Decency Act.

Third, Nina Mokhber Shahin examines undisclosed paid political advertisements by social media influencers, arguing that the Federal Trade Commission (FTC) is best situated to institute disclosure requirements for these presently underregulated advertisements.

Finally, this Issue concludes with our Annual Review of notable court decisions that have impacted the communications field in recent years. Each of these was authored by a member of our Journal, and we appreciate their thoughtful analyses of these important cases.

The Editorial Board of Volume 78 would like to thank the FCBA and The George Washington University Law School for their continued support of the Journal. We also appreciate the hard work of the authors and editors who contributed to this Issue.

The Federal Communications Law Journal is committed to providing its readers with in-depth coverage of relevant communication and technology law topics. We welcome your feedback and encourage the submission of articles for publication consideration. Please direct any questions or comments about this Issue to fclj@law.gwu.edu. Articles can be sent to fcljarticles@law.gwu.edu. This Issue and our archive are available at http://www.fclj.org.

Ella Hillier

Editor-in-Chief

Article

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

By Lawrence J. Spiwak, Esq.

Efforts to regulate Artificial Intelligence (“AI”) 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 (“FCC”) 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. This paper is organized as follows. First the paper details the statutory language in the Communications Act highlighted by the Trump AI Action plan. Next, the paper goes through efforts to use the FCC’s efforts to preempt state laws governing municipal broadband. The next several sections proceed to go through the FCC’s efforts of “preemption by nonregulation”—that is, rather than make case-specific preemption decisions, the FCC attempted to deregulate whole swaths of the industry by reclassifying those services as “information services” under Title I of the Communications Act. These reclassification battles, in turn, led to the two-decade Net Neutrality debate. Paradoxically, the FCC’s reclassification of broadband as Title I services severely curtailed (if not outright eliminated) the FCC’s authority to preempt states’ efforts to regulate the provision of broadband. The paper concludes by noting that because the clock is ticking, trying to contort the Communications Act to preempt the growing patchwork of disparate state AI laws is a Quixotic exercise in futility. Worse, as courts are often a “black box” where outcomes can be unexpected, engaging in legal gymnastics with the Communications Act could perversely lead to a vast expansion of the FCC’s authority beyond its statutory constraints. The cleanest legal solution, therefore, is for Congress to enact expeditiously some sort of preemption mechanism before the United States loses the AI race due to an unnecessary “Death by Fifty State Cuts.”

Notes

Locked Out of Democracy: Addressing the Hidden Voter Suppression in Jails

By Maya W. Lilly

This Note discusses the active de facto disenfranchisement of pre-trial detainees. Although the Supreme Court has held that pre-trial detainees maintain the right to vote, this Note will show that more is required to protect this precious right because there is a current crisis of deficient information, confusion, and misinformation in pre-trial corrections facilities that effectively disenfranchises detainees’ ability to exercise their right to vote. This Note shows that the First Amendment, through its broad right to access information, protects individuals’ access to voting information. Since pre-trial detainees are legally eligible voters, they too enjoy this right to access voting information.

However, this Note will show how the Supreme Court’s deferential First Amendment standard applied to claims raised by incarcerated people allows jail officials to regulate pre-trial detainees’ access to information to the point of allowing them to universally disenfranchise a jail’s voting population. Therefore, this Note proposes that the federal courts recognize that pre-trial detainees have a right of access to voting information. This right, inspired by the prisoners’ right of access to the courts, will more effectively ensure that pre-trial detainees are able to exercise their constitutionally protected right to vote.

Deepfakes, Deeper Issues: Moderating Explicit Deepfake Content Through a Federal Right of Publicity Exception

By Nako Caternor

The Equal Time Rule requires broadcast stations and licensees to afford equal opportunity in airtime to all candidates who submit a request. Currently, televised political debates automatically constitute on-the-spot coverage of bona fide news events and are thus categorically exempt from the Equal Time Rule. The categorical exemption for televised political debates gives broadcast stations and licensees considerable autonomy and allows for appreciable differences in the amount of speaking time afforded to participating candidates. This Note suggests that televised political debates no longer be categorically exempted from the Equal Time Rule. Instead, broadcast stations and licensees would satisfy a modified version of the two-pronged test that the FCC currently uses to determine if a televised program is subject to the bona fide news event exemption. The FCC’s inquiry of good faith news judgment and nonpartisanship under the two-pronged test could explicitly consider comparisons in speaking time among debate participants. A finding of significantly disparate speaking times among debate participants would result in a finding of partisanship and retroactively disqualify the broadcast station or licensee from the exemption to the Rule. This policy change would motivate broadcast stations and licensees to afford relatively equal speaking time to all debate participants.

Elections Affect Commerce: Why the FTC Should Regulate Political Endorsements by Social Media Influencers

By Nina Mokhber Shahin

In the absence of federal privacy legislation in the United States, the Federal Trade Commission (FTC) and Department of Justice (DOJ) Antitrust Division do not need to revamp the existing antitrust legal framework to address harmful data collection practices by large technology companies. Rather, the FTC and DOJ should remedy such harms by framing them in traditional monopolization terms (i.e., exclusionary conduct that harms consumers by reducing innovation and the overall quality of products and services). By way of example, this Note will analyze the facts of Germany’s antitrust case against Facebook in the context of Sherman Act Section 2. In February 2019, Germany’s top antitrust enforcement authority, the Bundeskartellamt (FCO), charged Facebook with abusing its dominant position in the marketplace and ordered the company to stop collecting data from sources outside its platform. The FTC or DOJ should bring a similar claim under Sherman Act Section 2. But to be successful, the agency will need to emphasize how Facebook’s data collection practices harm consumers.

Volume 78; 2025-2026 • Issue 3

Article

Notes

Communications Law: Annual Review