On November 15, 2023, the Federal Communications Commission ("FCC") issued a Notice of Inquiry ("NOI") seeking comment concerning the impact that emerging artificial intelligence ("AI") technologies may have on the telemarketing industry. The FCC regularly issues rulemakings on issues that they deem pressing. One of the areas of new concern is the legality of AI-assisted telemarketing under the Telephone Consumer Protection Act ("TCPA") and/or the Telemarketing Sales Rule ("TSR"). As our readership is aware, the TCPA and TSR are federal statutes designed to protect consumers by restricting certain types of telemarketing communications. Recognizing that many emerging technologies have foreseeable impacts on consumer communications, the NOI represents the FCC's effort to evaluate whether TCPA regulations should be modified to address the future of AI use in the telemarketing industry.
On January 16, 2024, 26 attorneys general ("AGs") submitted Reply Comments to the FCC's NOI, emphasizing the potential harm that AI telemarketing use poses to consumers and asking the FCC to strongly restrict such usage. Led by Pennsylvania Attorney General Michelle A. Henry, the contingent seeks to ensure that any future rulemaking does not create a TCPA loophole for the use of AI telemarketing technology.
Why is AI Telemarketing Seen as Problematic?
Under the TCPA, it is unlawful "to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party." As you may be aware, the FCC has previously rejected arguments that soundboard technology produces the functional equivalent of conversation between a consumer and another human being. In doing so, the Commission noted that the AI-based technology that it had evaluated did not adequately recreate an interaction with a live agent. As a result, the FCC states in its NOI that "the TCPA's existing prohibition on 'artificial' voice messages encompasses current AI technologies that generate human voices."
Notwithstanding the foregoing, the FCC does consider the possibility that AI-generated voice could eventually resemble that of a live agent during telemarketing interactions. The NOI further discusses whether improvements in AI could eventually minimize or negate the nuisances currently associated with the use of artificial or prerecorded voice messages.
Concerned with the open-ended nature of the FCC's remarks, the AGs want to ensure that the FCC is not considering the possibility of allowing AI telemarketing calls to be initiated without prior consumer consent. The AGs warn that such an amendment could open a loophole through which telemarketing businesses would "inundate" consumers with unwanted telemarketing calls that utilize AI technology.
In their Reply Comments, the AGs respectfully requested that any type of voice-generating AI, in present or future form, be considered an "artificial voice" for purposes of the TCPA. If treated the same as "artificial voice,", companies engaged in AI telemarketing could never forego the TCPA requirement of obtaining prior express consumer consent prior to the use of such technology.
Why are the AGs' Comments Relevant to your Business?
In their Reply Comments, the AGs make their position clear to the FCC: any voice messages that are generated by AI should be considered "artificial voice," as contemplated by the TCPA. The AGs' position is significant because the FCC has stated that it is open to the possibility that AI voice may not be deemed "artificial" if the technology improves in the future.
The NOI reply comment period closed on January 16, 2024. It will be interesting to see if the FCC adopts the AGs' proposed bright line approach. Against this backdrop, telemarketing companies that utilize voice generation technology should consult with legal counsel in anticipation of any future rulemaking on this issue.
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