Acting expeditiously in part in response to recent events, the Federal Communications Commission (“FCC”) declared on February 8 that the Telephone Consumer Protection Act’s “restrictions on the use of ‘artificial or prerecorded voice’ encompass current [artificial intelligence (“AI”)] technologies that generate human voices.” Therefore, the FCC ruled “calls that use such technologies fall under the TCPA and the [FCC’s]…implementing rules and…require the prior express consent of the called party to initiate such callas absent an emergency purpose or exemption.” If telemarketing is involved, prior express written consent is required. However, contrary to other media reports, the FCC ruling neither bans use of AI, nor even requires consent to use AI to create content that is in text or that is subsequently converted into artificial voice. Rather, it merely equates AI-voice generation to other forms of artificial or prerecorded voice messages for TCPA consent purposes. Since prior express consent to use of artificial or prerecorded voice messages is what the TCPA requires, that is what the consent should cover. However, it is advised that the use of AI to generate such audio content should also be disclosed as part of the consent.

The FCC had initiated a Notice of Inquiry (“NOI”) last year, indicating at the time that its “authority under the TCPA encompasses current uses of AI in robocalling and robotexting …(e.g., emulating human speech and interacting with consumers as though they were live human callers when generating voice and text messages).” The NOI specifically mentioned “voice cloning” at the time and the FCC’s ruling confirmed that “AI technologies such as ‘voice cloning’ fall within the TCPA’s existing prohibition on artificial or prerecorded voice messages because this technology artificially simulates a human voice.”

The agency made clear that the “TCPA does not allow for any carve out of technologies that purport to provide the equivalent of a live agent, thus preventing unscrupulous businesses from attempting to exploit any perceived ambiguity in…[its] TCPA rules.” The FCC stated that “[v]oice cloning and other similar technologies” emulating “real or artificially created human voices for telephone calls to consumers” fall within the TCPA restrictions.

The ruling notes that it is consistent with its ruling that the “TCPA applies to any telephone call that is initiated using an artificial or prerecorded voice message.” Previously, the FCC ruled that the presence of a live agent on a call selecting prerecorded messages to be played “does not negate the clear statutory prohibition against initiating a call using a prerecorded or artificial voice.” This “rationale” also is applicable to AI technologies, “including those that either wholly simulate an artificial voice or resemble the voice of a real person taken from an audio clip to make it appear as though the person that is speaking on the call to interact with consumers.” Accordingly, the ruling does not reach the use of AI by a live agent to help how to live respond.

Finally, the FCC reminded that the TCPA rules require that “all artificial or prerecorded messages must provide certain identification and disclosure information for the entity responsible for initiating the call.” Where an advertisement or telemarketing is involved, the message must also offer an opt-out method to the called party.

In taking this action, which became effective upon the February 8 release, Chairwoman Rosenworcel added that State Attorneys General can now “go after the bad actors behind these robocalls and seek damages under the law.”

The Commission could take further steps regarding AI and the TCPA as the NOI remains open. It should also be noted that other laws, including the Federal Trade Commission’s (and state attorney generals’) deception authority, already prohibit use of deep fakes in a commercial setting, and the FTC has specifically targeted the growing use of AI clones in fraudulent schemes (e.g., the clone impersonates a relative, friend, supervisor, colleague, vendor or business partner requesting money to be sent).

Photo of Paul Besozzi Paul Besozzi

I have practiced in the telecommunications regulatory field, including before the FCC and state regulatory agencies, for some 35 years. This has included advising clients on all manner of compliance, rulemaking, enforcement and legislative issues relating to the Telephone Consumer Protection Act and…

I have practiced in the telecommunications regulatory field, including before the FCC and state regulatory agencies, for some 35 years. This has included advising clients on all manner of compliance, rulemaking, enforcement and legislative issues relating to the Telephone Consumer Protection Act and Junk Fax Act, particularly before the FCC which develops the regulations implementing those statutes. My efforts include reviewing clients’ technology and TCPA compliance plans to determine whether they meet FCC requirements and advising on strategies for raising issues with the FCC.