On August 7, 2024, the Federal Communications Commission (FCC), continuing to build on last year’s Notice of Inquiry regarding AI-generated calls under the Telephone Consumer Protection Act (TCPA), unanimously issued a Notice of Proposed Rulemaking (NPRM) at its Open Meeting.

The proposed rules would have wide-ranging implications for the use of AI and AI-generated calls by businesses. While the FCC stated that its rules are designed to provide consumers with an opportunity to identify and avoid calls that contain an enhanced risk of fraud, the FCC’s plan could also curtail the ways in which businesses choose to communicate with their customers.

Background

On November 16, 2023, the FCC released a Notice of Inquiry seeking to better understand the implications of emerging AI technologies as part of their ongoing efforts to protect consumers from unwanted and illegal telephone calls and text messages under the TCPA. Specifically, the FCC sought comment on how AI technologies can be defined in the context of robocalls and robotexts.

In response to this request, the FCC noted that several commenters agreed that the use of AI technologies are becoming increasingly prevalent, with both potential benefits and risks to consumers. For example, several commenters highlighted the ability of AI-generated technologies such as voice cloning to be used for fraud and scams. Additionally, several commenters requested that the FCC require outbound calls that use AI-generated content to comply with the TCPA’s prior express written consent obligations.

On February 8, 2024, the FCC released a Declaratory Ruling confirming that the phrase “artificial or prerecorded voice” as used in the TCPA and the FCC’s implementing rules encompasses current AI technologies that resemble human voices and/or generate call content using a prerecorded voice. As a result, the FCC clarified that calls using such technologies fall under the TCPA, and therefore require the prior express consent of the called party.

Now, the FCC is seeking comment on its proposal to specifically define AI-generated calls, as well as seeking comment on several new proposed rules that would require callers disclose to consumers when they receive an AI-generated call at the beginning of the call.

Definition of “AI-Generated” Calls

The FCC proposed to define “AI generated call” 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.” The FCC specifically seeks comment on whether this proposed definition captures the potentially harmful uses of AI that consumers wish to avoid while excluding the positive uses of AI for consumers.

While, as noted above, the FCC has previously clarified that calls using AI voice technology fall within the purview of the TCPA, this new – and broad – definition will play an important role if the FCC enacts the disclosure requirements discussed below.

Disclosure Rules for AI-Generated Calls

Along with a new definition of AI generated calls, the FCC also is seeking comment on new disclosure rules that would apply to such calls. First, the FCC would require companies to clearly and conspicuously disclose if they are using AI in connection with placing artificial or prerecorded voice calls, or using an autodialer to place calls or text. Such disclosure would need to be incorporated into the express written consent obtained from consumers prior to placing such calls or texts.

Second, the FCC would require callers using AI-generated voice to clearly disclose to the called party that the call is using AI-generated technology at the beginning of each call.

The proposed new disclosure rules would reshape how companies call and text their customers and require companies to overhaul their consent forms in the event they are using AI as described above. As the FCC has noted, companies are deploying AI technologies in communications with their customers more than ever. Requiring the proposed upfront disclosure and consent may lead to a larger number of customers declining such calls and texts, thereby cutting off one of the main paths that companies currently use to communicate with customers. There is also a risk of an increase in litigation should companies fail to abide by these amended rules while using AI to call and text consumers.

Additional Topics in the NPRM

The NPRM seeks a comment on a number of other issues, including:

• support for technologies that alert and protect consumers from unwanted or illegal calls or texts using AI
• protecting uses of AI to help people with disabilities without the threat of TCPA liability
• the development of technologies that detect incoming calls that are potentially fraudulent and AI-generated based on real-time analysis of voice call content; and
• the development of technologies potentially block future calls that can be identified as similarly AI-generated or otherwise fraudulent voice calls based on analytics.

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The FCC seeks initial comment 30 days after publication of the NPRM in the Federal Register, with any reply comments due 45 days after such publication. Businesses concerned with the far-reaching definition of “AI generated calls” and other proposed rules should use this opportunity to provide to feedback to the FCC. The new rules will impact compliance programs and could lead to an increase in TCPA class action litigation, which remains a significant risk for companies that call and text their customers, consumers, and employees.