The Federal Communications Commission ("FCC" or "Commission") continues to evaluate how artificial intelligence ("AI") technology impacts the telemarketing industry. As our readers may recall, the FCC issued a Declaratory Ruling last February, making clear that AI telemarketing calls fall within the purview of the Telephone Consumer Protection Act ("TCPA") and its implementing regulations. A few months later, the Commission adopted a Notice of Proposed Rulemaking ("NPRM") introducing measures that would prohibit the use of generative-AI technology in connection with telemarketing without obtaining prior express consent from consumers. In November, the FCC issued a Notice of Inquiry ("NOI"), announcing its formal inquiry into how AI calling might affect consumers, both in a positive and negative way.
The FCC enacted the TCPA over thirty years ago to protect consumers against invasive telemarketing practices. In the years since, many revolutionary technologies have emerged that have been used in the telemarketing space. AI calling is the latest; and, as it becomes more prevalent, presents unique challenges to the FCC from a regulatory standpoint. The FCC's NOI is the latest of its efforts to better understand generative-AI technology before implementing widespread policies governing its use in telemarketing.
What is the Purpose For the FCC's AI Call NOI?
The FCC previously made clear that, in certain circumstances, AI-generated calls may pose a risk to consumers. However, the goal of the FCC in issuing its NOI is not necessarily to increase regulation. As FCC Chairwoman Jessica Rosenworcel stated, "[w]e know the risks that this technology involves, but we also want to harness the benefits." To that end, the FCC's inquiry will focus on:
- Understanding how AI might protect consumers from unwanted telecommunications;
- The current state of AI use in calling and texting consumers;
- The impact of emerging AI technologies on consumer privacy rights under the TCPA; and
- If necessary, any steps the Commission might take to address these issues.
What Are the Key Takeaways from the FCC's AI-Related Regulatory Efforts Thus Far?
As an initial matter, the FCC seeks commentary on how it should define AI. The Commission recognizes that AI can encompass a wide range of technologies and functions, many of which extend beyond the scope of its inquiry. The FCC has repeatedly made clear, however, that AI technology that emulates human voice is considered artificial voice for the purposes of TCPA regulation.
As our readers are aware, the TCPA provides, in relevant part, that it is unlawful "to initiate any telephone call to any residential [or mobile] telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party." Essentially, the FCC has clarified, and we agree, that telemarketers must first obtain express written consent before contacting a consumer using AI-generated voice and SMS text messages. In its NPRM, the Commission proposed a new rule requiring that when providing consent, a consumer must clearly and conspicuously consent to the use of AI-generated communications.
Finally, the Commission proposed that any entities initiating outbound calls or text messages generated using AI technology must disclose the use of such technology at the beginning of the subject call or text message.
Why are the FCC's Efforts to Understand AI Calling Technology Relevant to your Business?
The foregoing discussion addresses only a few of the numerous perspectives being taken into consideration by the FCC as it continues its AI call rulemaking. Because the use of AI to deliver consumer communications is nearly ubiquitous today, the FCC has received a great deal of commentary from the general public and the telemarketing industry alike. The burden now rests with the FCC to draw the line between AI's potential to help facilitate telemarketing efforts and any potential harm to consumers.
Companies that use generative-AI as part of their marketing operations should consult with legal counsel to ensure that their practices comport with the FCC's latest guidance.
Similar Blog Posts:
Marketing Partner Lists, The FCC, and Telemarketing's Future
New TCPA Requirements for Non-Marketing Calls
Government Contractors Subject to New FCC TCPA Robocall Rules
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
