FCC Declares Authority and Intent to Regulate AI-Generated Calls under the TCPA
On February 8, the Federal Communications Commission (“FCC” or “Commission”) unanimously adopted a Declaratory Ruling (“Ruling”) stating that calls made with AI-generated voices are “artificial” under the Telephone Consumer Protection Act (“TCPA”).1 The Ruling clarifies the Commission’s intent to further regulate the use of voice cloning technology used in connection with robocall scams targeting consumers. FCC Commissioner Anna Gomez said of the Ruling: “This is serious. Misinformation in this form poses a threat to our democracy.”2
While the Ruling does not present new rules, it does “clarify” and “confirm” that the current TCPA rules apply to Artificial Intelligence (“AI”) technologies.3
The Telephone Consumer Protection Act
The TCPA is the FCC’s primary source of authority for regulating automated calls. The TCPA restricts the making of calls using an automatic telephone dialing system, or an artificial or prerecorded voice. In particular, the TCPA prohibits initiating “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” unless a statutory exception applies or the call is “exempted by rule or order by the Commission under [section 227(b)(2)(B) of the Communications Act of 1934].”4 The TCPA also prohibits any such calls made to mobile devices.5 Any call made using an “automatic telephone dialing system” or an artificial or prerecorded voice is considered a “robocall” by the Commission.6 The TCPA prohibits such calls made without the prior express consent of the called party.
The Ruling
The Ruling clarifies that the TCPA’s restrictions on the use of an “artificial or prerecorded voice” encompass current AI technologies that generate human voices. AI technologies may be implicated in the use of either “artificial” or “prerecorded” voices as prohibited by the TCPA. According to the FCC, when AI technologies, such as voice cloning, are used to emulate real or artificially created human voices on a phone call, those calls are “artificial” voice messages within in meaning of the TCPA. When AI technologies are used to select and play prerecorded voice messages to consumers, those calls fall within the scope of the TCPA’s existing restriction on calls “using [a] prerecorded voice.”7 In this manner, the FCC targets AI-generated calls through existing TCPA-related restrictions.
Accordingly, the requirements already applicable to calls under the TCPA apply to any AI technologies used to initiate any outbound telephone call to a consumer using an artificial or prerecorded voice. The TCPA’s key requirements include:
- Consent: Callers must obtain prior express consent from the called party before making a call that utilizes an artificial or prerecorded voice that is simulated or generated through AI technologies.8
- Disclosure: All artificial or prerecorded voice messages must provide certain identification and disclosure information for the entity responsible for initiating the call.9
- Opt-Out Options: If the artificial or prerecorded voice message includes or introduces an advertisement or constitutes telemarketing, it must also offer specific opt-out methods for the called party to opt-out of future calls.10
Analysis and Next Steps
The Ruling is the latest in a lengthy series of FCC actions evincing the Commission’s strong interest in protecting consumers from scams involving AI.
For example, on November 16, 2023, the Commission released a Notice of Inquiry11 seeking feedback and information on emerging AI technologies. The FCC specifically requested information on the use of AI in unwanted and illegal telephone calls and text messages under the TCPA. At that time, the Commission stated “the Commission’s authority under the TCPA encompasses current uses of AI in robocalling and robotexting as we understand them, e.g., emulating human speech and interacting with consumers as though they were live human callers when generating voice and text messages.” And, just two days before issuing the Ruling, the FCC issued a press release and cease-and-desist letter to an entity that initiated robocalls to voters in New Hampshire using an AI-generated voice similar to President Joe Biden’s.
Moreover, the Ruling is indicative of a larger regulatory shift and greater attention to AI among government agencies, heralding new guidance and rulemaking activity. For example, the Federal Trade Commission has recently finalized a rule banning government and business impersonation fraud and proposed new protections to combat AI impersonation of individuals. In a similar vein, the Federal Election Commission has sought comment on prohibiting the deceptive use of AI in campaign advertisements. This, along with actions from other government agencies in addition to the Commission, have shown that the relevance and significance of increasing regulation on AI technologies cannot be understated.
Looking ahead, the Ruling gives State Attorneys General across the country an additional tool to seek out and prosecute voice cloning scams. The FCC has underscored its continued cooperation with law enforcement agencies in nearly all states to identify and eliminate illegal robocalls. The Attorneys General of 48 states and counting have entered into memoranda of understanding with the FCC to enforce state laws tied to robocall definitions under the TCPA. Thus, in addition to facing FCC civil enforcement authority, companies involved in AI technologies that may be exploited for robocalling may run the risk of state-level scrutiny.
1 See Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243, 105 Stat. 2394 (1991), codified at 47 U.S.C. § 227.
2 Remarks of FCC Commissioner Anna M. Gomez, 2024 Media Institute Communications Forum (Feb. 20, 2024).
3 See In the Matter of Implications of Artificial Intelligence Technologies on Protecting Consumers from Unwanted Robocalls and Robotexts, CG Docket No. 23-362, Declaratory Ruling, FCC 24-17 (rel. Feb. 8, 2024).
5 See 47 U.S.C. § 227(b)(1)(A)(iii) (prohibiting the use of any automatic telephone dialing system or an artificial voice or prerecorded voice to “any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call, unless such call is made solely to collect a debt owed to or guaranteed by the United States”).
7 47 U.S.C. § 227(b)(1)(A), (b)(1)(B) (imposing restrictions on calls “using” a “prerecorded voice”).
8 See 47 U.S.C. § 227(b)(1)(B).
9 See 47 C.F.R. § 64.1200(b)(1), (2).
10 See 47 C.F.R. § 64.1200(b)(3).
11 See Implications of Artificial Intelligence Technologies on Protecting Consumers from Unwanted Robocalls and Robotexts, CG Docket No. 23-362, Notice of Inquiry, FCC 23-101 (rel. Nov. 16, 2023) (AI NOI).
