On February 8, 2024, the Federal Communications Commission ("FCC") issued a Declaratory Ruling clarifying that telemarketing calls utilizing AI are regulated by the Telephone Consumer Protection Act ("TCPA") and its implementing rules. The FCC enacted the TCPA over thirty years ago to protect consumers from invasive telemarketing practices. Recognizing the threat that emerging AI technologies could pose to consumers, the FCC has made clear that calls employing AI technology are subject to the TCPA's restrictions on "artificial or prerecorded voice" transmissions.

As our readers are aware, on January 31, 2024, FCC Chairwoman Jessica Rosenworcel released a statement proposing that the FCC impose blanket TCPA restrictions on AI telemarketing calls. Specifically, Chairwoman Rosenworcel suggested that the FCC issue a Declaratory Ruling making clear that, for purposes of the TCPA, AI-generated voices are "artificial." A little over a week later, the FCC did just that. Joining Chairwoman Rosenworcel in issuing a statement supporting the Declaratory Ruling were Commissioners Geoffrey Starks and Anna Gomez.

Why did the FCC Outlaw Unsolicited AI Voice Calls Under the TCPA?

As our readers will recall, on November 16, 2023, the FCC released a Notice of Inquiry asking for public input on the TCPA's treatment of AI technology. As one can imagine, the FCC received a great deal of strongly-opiniated commentary from various interest groups on the emerging AI TCPA issue. One particular contingent, consisting of 26 Attorneys General, submitted perhaps the most influential commentary. Shortly thereafter, Chairwoman Rosenworcel released the aforementioned statement in support of the Attorneys' General position.

The TCPA provides, in relevant part, that 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." This means that, if you do not first obtain consent, calling a consumer and transmitting an "artificial" voice is illegal. By declaring that AI voice is "artificial" under the TCPA, the FCC made clear that telemarketers face stiff penalties if they contact consumers using AI voice without prior express consent. An area of concern for proponents of the TCPA's updated treatment of AI technology is that of "voice cloning." "Voice cloning," and other similar technologies, have the ability to generate an artificial voice that mimics that of another real-life human being. Readers will recall that New Hampshire residents recently received calls that utilized AI to generate President Joe Biden's voice, urging them not to vote in the State's primaries. The FCC's AI TCPA Declaratory Ruling also references instances in which scammers have utilized AI technology in calls to the elderly, sometimes imitating the voices of their grandchildren and asking that money be transferred on their behalf. By specifically declaring that AI calls should be included in the TCPA's restrictions on the use of artificial voice, the FCC hopes to curb these fraudulent practices.

Why is the AI TCPA Declaratory Ruling Relevant to your Business?

In issuing its ruling, the FCC has made its position abundantly clear on the use of AI-based telemarketing calls. The FCC formally adopted the broad approach to AI telemarketing that was advocated by the 26 Attorneys General and Chairwoman Rosenworcel.

Please note that the FCC's ruling is effective immediately. Companies that utilize voice generation technology should now consult with legal counsel to ensure that their telemarketing practices comport with the FCC's new AI TCPA guidance.

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