With AI-generated content becoming more widespread daily, the Federal Communications Commission (“FCC” or “Commission”) has solicited comments from the general public and companies alike in connection with a recent Notice of Proposed Rulemaking (“NPRM”). In its NPRM, the FCC seeks comment regarding, among other things, the definition of AI-generated calls. The Commission’s proposed definition of “AI-generated calls” has generated a lot of comments from interested parties, some of which we discuss below.
Is A Definition for AI-Generated Calls Necessary?
The FCC proposes to define an “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 large majority of those who have commented explain that the proposed definition of AI-generated call is unnecessary given that the FCC already has declared that an AI-generated call is an artificial or prerecorded voice call for purposes of the Telephone Consumer Protection Act (“TCPA”). Commentators claim that further defining AI-generated calls will lead to: (1) confusion among the telemarketing industry as to whether their calls and texts fall within the Commission’s definition of AI-generated calls; and (2) litigation over whether the technology or tools companies use to deliver calls/texts are AI-generative. Instead, commentators propose that the Commission simply rely on the plain language of the TCPA to determine whether a given call is subject to the TCPA’s restrictions. In addition, several commentators suggest that the Commission refrain from regulating AI-generated text messages because: (1) unlike calls, AI-generated text messages do not deceive recipients; and (2) AI is frequently used to provide consumers with certain purely beneficial informational messages, such as banking fraud alerts, two-factor authentication codes, and one-time passcode requests.
In addition to defining what an AI-generated call is, the Commission proposes additional disclosure requirements that should accompany AI-generated calls/texts. In its current form, the NPRM would require those that make AI-generated calls to obtain consent upfront via a clear and conspicuous disclosure that consent to receive artificial and prerecorded calls includes consent to receive AI-generated calls. Callers also must disclose that the call is AI-generated at the beginning of each such call. For autodialed text messages that include AI-generated content, the Commission requires callers to provide a clear and conspicuous disclosure that consent to receive such messages includes consent to receive AI-generated content. For the same reasons discussed above, commentators suggest that the Commission’s proposed disclosure requirements are excessive and unnecessary because the Commission already declared that AI-generated calls/texts constitute artificial or prerecorded voice for purposes of the TCPA and its implementing regulations.
The Future of AI-Generated Calls
The FCC’s AI-generated call rulemaking has garnered a lot of commentary from companies across all industries. These comments reflect the delicate balancing act that the FCC must undertake before adopting an approach which may prevent practical and beneficial uses of AI-generated content.
Companies that use AI-generated calls and/or texts as part of their marketing operations should consult with legal counsel to ensure that their practices comport with the FCC’s latest rulemaking efforts.
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