The Federal Communications Commission (“FCC”) has unanimously approved a Notice of Proposed Rulemaking (“NPRM”) and Notice of Inquiry (“NOI”), proposing first-of-their-kind AI-generated robocall and robotext rules that would require callers and texters to make clear when they are using AI-generated technology. The new rules would apply to calls and texts to mobile numbers, as well as calls to residential numbers, and would apply to both informational and telemarketing calls.

In the NPRM, the Commission proposes defining an “AI-generated call”, for the purposes of identifying the types of calls that would be subject to these new rules, as “a call that uses any technology or tool to generate an artificial or prerecorded voice or a text using computational technology or other machine learning, including predictive algorithms, and large language models, to process natural language and produce voice or text content to communicate with a called party over an outbound telephone call.” While applying this definition to voice calls may be relatively straightforward, how the definition would apply to texts may prove more of a challenge.

The Commission also proposes new AI-generated call disclosure and consent rules aimed at providing consumers with an opportunity to identify and avoid calls or texts that the Commission posits may contain an enhanced risk of fraud and other scams. Specifically, the Commission proposes:

• Requiring callers making calls using AI-generated artificial or prerecorded voice messages to include clear and conspicuous disclosure that the consumer’s consent to receive artificial and prerecorded calls may include consent to receive AI-generated calls.
• Instructing callers making autodialed text messages that include AI-generated content to provide clear and conspicuous disclosure that the consumer’s consent to receive such messages may include consent to receive AI-generated content.
• Requiring callers using AI-generated voice to, at the beginning of each call, clearly disclose to the called party that such call is using AI-generated technology.

Additionally, the Commission has proposed certain protections to ensure that its new rules would not hinder potential accessibility benefits that AI technologies can offer consumers, such as improving telephone access for individuals with disabilities. The proposed rules would exempt from the TCPA’s requirements artificial or prerecorded voice calls made by an individual with a speech or hearing disability using AI technologies designed to facilitate the ability of such individuals to communicate over the phone. This proposed exemption would extend to the use of any technology that assists individuals with disabilities to communicate, other than for their use of AI to engage in unsolicited advertising or telemarketing.

In the NOI, the Commission seeks additional comment on developing technologies that can alert consumers to AI-generated unwanted and illegal calls and texts and whether it should adopt rules that would govern the use of call detection, alerting, or blocking technologies to protect the privacy of callers and called parties.

This action is the latest in a series of Commission actions that aim to protect consumers from AI-generated schemes that could potentially misinform and mislead consumers, and to provide consumers with control over whether and how they interact with AI calls and texts. In February, the Commission issued a declaratory ruling clarifying that AI generated messages or voice calls fall within the TCPA’s restrictions and the FCC’s rules on artificial or pre-recorded voice calls. In May, the Commission proposed rules that would require disclosure when AI technology is used in political ads on radio and television. Furthermore, the Commission proposed significant fines stemming from an alleged robocall scheme that utilized purported deepfake, AI-generated voice cloning technology and caller ID spoofing to spread misinformation during the New Hampshire primary election. This latest NPRM also demonstrates how federal agencies continue to grapple with adapting and expanding existing legal frameworks to deal with the proliferation of AI technologies.

Clearly, the Commission remains focused on adopting rules to keep pace with the development of AI technologies, and its use in voice calling and texting communications. Still, while the item was unanimously approved, FCC Commissioner Carr emphasized that the Commission should be cautious and not overregulate with respect to AI. With that in mind, an important consideration for the Commission as it moves forward, is how to balance its concerns with the potential dangers of AI in connection with its use by fraudsters and scammers, with the benefits and efficiencies it can offer consumers and businesses in connection with various types of consumer communications.

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