Recently, an Artificial Intelligence ("AI") Telephone Consumer Protection Act ("TCPA") lawsuit was filed against a healthcare marketer in the United States District Court for the Northern District of Illinois. In Finley v. Altrua Ministries, Plaintiff claims that Altrua Ministries ("Defendant") delivered at least five prerecorded messages that utilized AI-generative voice to his cellular phone. Because Defendant allegedly placed these calls without acquiring Plaintiff's consent, Defendant is at risk of a large monetary judgment.
The Federal Communications Commission ("FCC") is continuing to evaluate how AI technology impacts the telemarketing industry. As our readers may recall, the FCC issued a Declaratory Ruling making clear that AI telemarketing calls fall within the purview of the TCPA and its implementing regulations. Since then, countless AI TCPA lawsuits have been filed, typically asserting that Defendants are in violation of the statute's prohibition on the use of artificial voice without obtaining prior consent from call recipients.
How Are AI Voice Messages Regulated Under the TCPA?
The FCC enacted the TCPA over thirty years ago to, among other things, better protect consumers against certain telemarketing practices. In the years since, many revolutionary technologies, such as AI, have emerged for use in the telemarketing space. The FCC's initial AI guidance is recognition that the technology should be regulated under preexisting telemarketing statutes.
The FCC has determined that AI technology emulating human voice is considered artificial voice for 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 made clear that telemarketers must first obtain express written consent before contacting a consumer using AI-generated voice and SMS text messages.
Last year, the FCC adopted a Notice of Proposed Rulemaking ("NPRM") to address issues it raised in its Declaratory Ruling. Among other measures, the FCC proposed a new rule requiring that when providing consent, a consumer must clearly and conspicuously consent to the use of AI-generated communications. Additionally, the FCC 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 is the Finley AI TCPA Lawsuit Relevant to your Business?
The Plaintiff in Finley alleges that he received at least five AI-generated voice messages from Defendant. Plaintiff further claims that, not only did he not provide the requisite consent, but the telemarketing calls were also meant for someone else. Plaintiff made clear that he never established a business relationship with, nor did he ever request information regarding healthcare services from, Defendant. The TCPA allows for the recovery of $500 – $1500 per violation, meaning that Defendant is potentially liable for a significant sum of money before class violations are added to the equation.
As discussed, the use of AI to deliver consumer communications is nearly ubiquitous today. We can expect the FCC to further clarify and regulate AI in the TCPA context as part of its ongoing AI rulemaking process.
In light of the above, 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.
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