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The FCC confirms that the TCPA applies to AI-generated Robocalls

Helen Christakos and Sonya Aggarwal of our U.S. Privacy and Data Security practice and Bertrand Nzabandora of our Technology Transactions practice look at the FCC’s ruling on AI-generated robocalls.

On February 08, 2024, the Federal Communications Commission (“FCC”) announced the unanimous adoption of a declaratory ruling applying the Telephone Consumer Protection Act (the “TCPA”) to calls made with voices generated by artificial intelligence (“AI”). The ruling, which takes immediate effect, held that the TCPA’s restrictions on the use of “artificial or prerecorded voice” applies to AI technologies that generate human voices. Consequently, to initiate a non-emergency call to a residential telephone line using voice cloning technology the caller must, among other things, obtain the prior express consent of the called party. State Attorneys General nationwide have been given authorization to prosecute violations.

Background on the TCPA

The TCPA is the primary law that the FCC uses to combat fraud resulting from robocalls. The TCPA restricts the making of telemarketing calls and the use of automatic telephone dialing systems and artificial or prerecorded voice messages, (i.e., robocalls), and requires that telemarketers seek and receive prior express written consent from consumers before robocalling them, with limited exceptions.

On November 16, 2023, the FCC issued a Notice of Inquiry to better understand the implications of AI as part of its mission to protect consumers from unwanted and illegal telephone calls and text messages under the TCPA. The FCC requested responses to questions on the following themes:

a) How AI may be used for scams that arise out of junk calls, by mimicking the voices of those that the recipient knows?

b) Should such technology be subject to oversight under the TCPA?

c) How can AI help the FCC with pattern recognition to turn such technology into a force for good that can recognize illegal robocalls before they ever reach consumers on the phone?

FCC’s Declaratory Ruling

FCC Chairwoman Jessica Rosenworcel raised concerns that “[b]ad actors are using AI-generated voices in unsolicited robocalls to extort vulnerable family members, imitate celebrities, and misinform voters.” As such, the FCC is motivated by the threat of increased fraud and misinformation posed by AI and its intention to protect the public from the same. In its notice of inquiry, the FCC reported that unwanted and illegal robocalls and robotexts together consistently formed the top category of complaints received by consumers.

The FCC’s declaratory ruling confirmed that the TCPA’s restrictions on the use of “artificial or prerecorded voices” include current AI technologies that resemble human voices and / or generate call content using a prerecorded voice.  The FCC stated that AI technologies such as voice cloning fall within the TCPA’s existing prohibition on artificial or prerecorded voice messages, because they artificially simulate a human voice. The FCC found them to be “artificial” voice messages because a human person is not speaking, and, as a result, they represent the types of calls from which the TCPA seeks to protect consumers. The FCC also recognized the potential for AI technologies to communicate with consumers using prerecorded voice messages, which it concluded is using a “prerecorded voice” within the meaning of the TCPA.

As such, effective February 08, 2024, AI-generated robocalls are prohibited by TCPA (absent an emergency purpose or exemption), unless prior express consent from consumers is obtained by the responsible organization. Further, the organization initiating such calls must now provide certain identification and disclosure information and must offer opt-out methods for the consumer to stop calls on their number.

New Tools of Enforcement for AI-Generated Robocalls 

Following the FCC’s ruling, the following enforcement tools are now available in response to AI-generated robocalls:

  • FCC: It can now extend its authority to fine robocallers under the TCPA to those using AI technology when they are not in compliance with the TCPA’s requirements. Further, the FCC can take steps to block calls from telephone carriers facilitating illegal robocalls.
  • Individual consumers and organizations: Individual consumers and organizations can now bring a lawsuit under the TCPA against those alleged to be responsible for illegal AI-generated robocalls in court.  The TCPA provides statutory damages in the amount of $500 for each separate violation and up to $1,500 for each willful violation.
  • State Attorney Generals: State Attorney Generals are also authorized to fine robocallers under the TCPA.

Conclusion

The FCC’s ruling is in line with the broader government focus on AI, following President Biden’s Executive Order on the governance of AI, on which we commented (on its issuance) here and (more recently) here.

This ruling is also part of the FCC’s collaborative approach to identifying and eliminating illegal robocalls by working with law enforcement agencies across the United States. Indeed, 26 State Attorneys General (which is over half of all State Attorneys General), wrote to the FCC on January 17, 2024 supporting the imposition of the TCPA’s rules and regulations to AI-generated robocalls.  Further, the FCC currently has a memorandum of understanding with 48 State Attorneys General to work together to combat robocalls.  As such, we should expect continued collaboration in this arena.