Attorney General Bonta Opposes FCC’s Inquiry into State AI Preemption

Continues speaking out against state AI regulation preemption — on any front  

OAKLAND — California Attorney General Rob Bonta today joined 23 attorneys general in sending a comment letter to the Federal Communications Commission (FCC) opposing the preemption of state laws on artificial intelligence (AI). The letter responds to a notice of inquiry published by the FCC in September that suggested the FCC would attempt to use its regulatory authority to preempt state AI laws and follows the troubling pattern of the Trump Administration attempting to limit states’ ability to protect their residents. In the letter, the attorneys general argue that the FCC lacks authority to preempt and that an attempt to do so would harm state interests. States across the nation are concerned about the President's proposal to squash their right to protect their residents and have previously sounded the alarm about the importance of preserving the ability of states to pass laws that address AI.

“States — with our flexibility and responsiveness to the market, changing technology, and the needs of our residents — are on the front lines of consumer protection, including when it comes to emerging technology. We take this job seriously,” said Attorney General Bonta. “The Trump Administration’s questioning of whether states should be able to regulate AI to protect consumers — under the guise of the FCC's interest in wireless telecommunications efficiency — is a dangerous overreach of their authority. I’ve said it many times before and I’ll say it again: I strongly oppose any effort to block states from developing and enforcing common-sense AI regulation. As the fourth largest economy in the world, California knows that states can both nurture evolving innovation and protect our residents — we have been doing so for decades.”

The FCC’s notice of inquiry lays the groundwork for the agency to attempt to preempt state AI laws in future proceedings. The notice of inquiry cites Section 253(a) of the Telecommunications Act of 1996, which states only that no state or local regulation "may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service." In the notice, the FCC requested comment on the following question: “As [AI] begins to play a bigger role in the provision of communications services, should the Commission consider whether state or local laws seeking to govern or limit uses of AI are prohibiting or effectively prohibiting the provision of wireline telecommunications services?” 

In the comment letter, the attorneys general object to the premise of this notice, highlighting that the notice is too vague under the Administrative Procedure Act to result in agency action. The attorneys general go on to note that the FCC lacks authority to regulate information services like AI and thus lacks authority to preempt state laws in this area — any attempt to do so would harm state interests in protecting their citizens. 

AI systems affect nearly all aspects of everyday life. The promise of AI raises exciting and important possibilities. But, like any emerging technology, there are risks to adoption without responsible, appropriate, and thoughtful oversight. States have played a leading role in developing strong privacy and technology protections to address a wide range of harms associated with AI and automated decision-making. State authorities are often the first to receive consumer complaints and identify problematic practices and have the proximity and agility to identify emerging threats and implement innovative solutions. 

Attorney General Bonta is proud to have opposed the first proposal for an AI regulation ban — which Congress ultimately struck down — and remains committed to defending our state's laws. This is not the Trump Administration's first effort to curb states' right to protect their residents and foster safe AI technology. 

• Last month, Attorney General Bonta joined a bipartisan coalition of 36 state attorneys general in sending a letter to Congress opposing a proposed provision in the National Defense Authorization Act that would preempt state laws addressing the risks of AI. In the letter, the attorneys general argue that, while artificial intelligence promises to be a transformative technology in multiple fields, it also poses significant risks, especially to children, and that states must be empowered to utilize existing laws and formulate new approaches to mitigate potential harms associated with artificial intelligence. In a separate letter, Attorney General Bonta called on Congress to abandon the proposed provision.

• In May, Congressional leaders considered a proposed 10-year ban on states enforcing any state law or regulation addressing AI and automated decision-making systems. The ban was included in the House Energy and Commerce Committee’s changes to the budget reconciliation bill and was ultimately struck down in July. Attorney General Bonta opposed this plan (here and here).