The US FCC is considering whether US state AI regulations interfere with the Communications Act, but multiple state attorneys general have argued that the regulator lacks the authority to pre-empt those measures.
Key takeaways
- The FCC is seeking comment on whether US state and local AI regulations can be prohibitions against wireless providers’ ability to offer covered services with AI.
- State attorneys general argued that AI falls outside FCC jurisdiction and warned that pre-emption would violate the Tenth Amendment.
- Separately, Trump issued an executive order on 11 December directing the FCC to consider adopting a federal reporting standard for AI models.
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The US Federal Communications Commission (FCC) filed a proposed rule on 1 December 2025, which among other things, seeks input regarding whether US state and local AI regulations can be an “effective prohibition on wireless providers' ability to provide covered service using AI technologies.”
The proposed rule notes that in July 2025, the White House released its AI Action Plan that directed the FCC to “evaluate whether state AI regulations interfere with the agency’s ability to carry out its obligations and authorities under the Communications Act of 1934.”
The FCC is requesting comment on how state and local AI regulations are, or have the effect of, impending telecommunications and personal wireless service advancements. The regulator also asked for legal theories on how the FCC has authority under sections 253 and 332(c)(7) of the Communications Act to pre-empt state and local AI regulations. The comment period is scheduled to end 31 December 2025.
AI services fall outside of FCC jurisdiction, states say
On 17 December 2025, Washington, DC, and 22 bipartisan state attorneys general submitted a public comment replying to comments supporting the pre-emption of state and local AI laws. The bipartisan coalition also highlighted why the FCC shouldn’t issue a declaratory ruling to pre-empt state and local AI regulations.
The state commenters on the FCC proposed rule:
Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Rhode Island, Tennessee, Utah, Vermont, Washington and Wisconsin.
According to the state commenters, the FCC lacks the power to pre-empt states’ AI measures. AI is a “classic” information service and is outside of the FCC’s jurisdiction, the state attorneys general wrote.
“Where Section 253(a) has been applied to preempt state (or local) law, the relationship between state (or local) regulation and the provision of telecommunications has been much stronger,” the state attorneys general added. “That is because state (or local) regulations must ‘materially inhibit or limit the ability of any competitor or potential competitor to compete.’”
The state attorneys general said deepfakes legislation, AI disclosure requirements and other state and local AI regulations aren’t “remotely related to limiting the entry or operation of telecommunications networks.”
The FCC’s proposal would also impinge the Tenth Amendment, the states added. The Tenth Amendment provides that the powers not delegated to the US by the US Constitution, nor prohibited by it to the states, are reserved to the states.
“More generally, if the use of AI became a defense against state consumer protection enforcement, that would constitute a significant intrusion into a traditional state function,” the states wrote. They noted that some of the state attorneys general that oppose the FCC proposed rule are suing Meta for allegedly maintaining and creating apps that deploy addictive and harmful algorithms and AI to children.
AGs claim the FCC’s notice of inquiry is too vague
The state attorneys general also took issue with the FCC’s September 2025 notice of inquiry that – in part – questioned whether state and local AI laws are prohibiting providing telecommunications services.
According to the states’ comment, given AI’s broad use cases and the FCC failing to define that technology, the regulator’s notice fails to provide requisite notice as required by the Administrative Procedure Act 1946.
“Paragraph 53 [of the notice of inquiry] is simply too vague to be actionable. Among other defects, it contains no definition of ‘Artificial Intelligence,’ no reference to any specific state (or local) laws that would be pre-empted, and no designation of any actual effects from any state or local action preventing telecommunications entry,” the states wrote.
In a statement announcing the states’ FCC comment, California Attorney General Rob Bonta said the FCC’s proposed rule is part of a larger effort by the Trump administration.
“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,” said Bonta. “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.”
State AI laws are under intense pressure
The federal government is increasingly eyeing state AI laws. On 11 December 2025, US President Donald Trump issued an executive order directing the FCC chair to launch a proceeding by 11 March 2026 to determine whether to adopt a federal reporting and disclosure standard for AI models that pre-empt conflicting state laws.
Trump also ordered the US Department of Justice to launch a litigation task force focused on challenging burdensome state AI laws. Trump said those and other directives are needed to combat a patchwork of AI state laws that threaten US leadership in AI.
The executive order was the latest attempt to address states’ AI legislation. Earlier this year, Congress had attempted to pass a moratorium to block states from enforcing their AI laws. However, a bipartisan group of state attorneys general, governors and lawmakers in Congress have resisted those efforts.