FCC Proposes First-of-Their-Kind TCPA Disclosure Rules for AI-Generated Robocalls and Robotexts

On August 7, 2024 the Federal Communications Commission proposed new consumer protections against AI-generated robocalls and robotexts.  The Notice of Proposed Rulemaking broadens the FCC’s efforts to address AI’s impact on the rights of consumers under the Telephone Consumer Protection Act.

The NPRM seeks comment on the definition of AI-generated calls, requiring callers to disclose their use of AI-generated calls and text messages, supporting technologies that alert and protect consumers from unwanted and illegal AI robocalls, and protecting positive uses of AI to help people with disabilities utilize the telephone networks.

The Notice of Proposed Rulemaking proposes to define “AI-generated calls,” and introduces such a definition that would include calls using artificial intelligence generate voice or text.  For purposes of identifying the types of calls that would be subject to the new proposed rules, the FCC proposes 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 definition proposed by the FCC is broad enough to encompass existing and evolving AI technologies.  Importantly, it is limited to outbound calls.  AI technologies that are used to answer inbound calls are not within the scope of the proposed definition of “AI-generated calls.”

“We believe this definition is consistent with federal and state AI definitions cited in the AI NOI, and tailored to reflect the privacy protections under the TCPA by focusing on AI-generated voice or text calls used to interact with consumers in outbound telephone calls.   For example, the TCPA’s prohibition on using an artificial or prerecorded voice message extends only to outbound calls that are “made” or “initiated” by the caller.   The TCPA’s requirements do not extend to technologies used to answer inbound calls.  As a result, this definition avoids unintentionally encumbering uses of AI technologies that consumers never interact with and widely used existing customer service technologies on inbound calls.  In addition, for the new disclosure that we propose today to apply to autodialed text messages, the message would first have to be sent using equipment that meets the definition of an “automatic telephone dialing system” as defined by the TCPA.   And second, they would need to meet the definition of “AI-generated call” that we propose pursuant to this Notice.”

The NPRM also requires callers to disclose that the caller intends to use AI-generated calls and text messages when obtaining prior express consent.  In addition, callers would need to disclose to consumers on each call when they receive an AI-generated call.  “This provides consumers with an opportunity to identify and avoid those calls or texts that contain an enhanced risk of fraud and other scams,” according to the FCC.

This NPRM also proposes protections to ensure that positive uses of AI that already help people with disabilities use the telephone network can thrive without threat of Telephone Consumer Protection Act liability.  In a Notice of Inquiry, the FCC seeks additional comment and information on developing technologies that can alert consumers to AI-generated unwanted and illegal calls and texts.  Such calls, however, cannot be for marketing purposes.

“These proposed robocall rules are the latest in a series of actions taken by the Commission to protect consumers from AI-generated scams that mislead consumers and misinform the public, empowering consumers to make informed decisions.  The Commission proposed new transparency standards that would require disclosure when AI technology is used in political ads on radio and television.”

The FCC recently adopted a Declaratory Ruling which made clear that voice cloning technology used in common robocall scams targeting consumers is illegal absent the prior express consent of the called party or an exemption.  It also proposed significant fines related to apparently illegal robocalls made using deepfake, AI-generated voice cloning technology and caller ID spoofing to spread election misinformation to potential New Hampshire voters prior to the January 2024 primary.

The NPRM illustrates the Commission’s focus on regulating the use of AI in telecommunications.

The FCC also released a Notice of Inquiry seeking comment on the development and availability of technologies on either the device or network level that can: (i) detect incoming calls that are potentially fraudulent and/or AI-generated based on real time analysis of voice call content; (ii)  alert consumers to the potential that such voice calls are fraudulent and/or AI-generated; and (iii)  potentially block future voice calls that can be identified as similar AI-generated or otherwise fraudulent voice calls based on analytics.

Further, the FCC seeks comment on the privacy implications of call detection technologies that analyze the content of calls in real time to identify calls that are potentially fraudulent and/or feature AI-generated voice without the required disclosure proposed above.  To that end, the FCC asks whether the Commission should adopt rules governing the use of call detection, alerting, or blocking technologies to protect the privacy of both callers and called parties.

The FCC states that while AI-enabled call detection, alerting, and blocking technologies promise to be effective tools in protecting consumers from unwanted calls, including scam calls, the Commission believes that these tools pose significant privacy risks, insofar as they appear to rely on analysis and processing of the content of calls—which are very sensitive data— by application or device providers, who already have access to the personally identifiable information of their users.

Accordingly, the Commission also seeks comment on the privacy implications of call detection, alerting, and blocking technologies.  The FCC also seeks comment on whether the Commission should consider requirements to protect the privacy of callers and called parties, and, if so, what such requirements should be.  “If we adopt privacy requirements in this area, should we rely on notice-and-consent principles, or should we instead adopt substantive protections such as minimization requirements for data collection, purpose limitations for data processing, and categorical restrictions on sharing and disclosure?”

Chairwoman Rosenworcel, Commissioners Carr, Starks, and Gomez approving.  Commissioner Simington approving in part and concurring in part.

Public comments are due thirty (30) days after the NPRM is published in the Federal Register.  It is anticipated that publication shall occur within the next thirty (30) days.  Comments must be submitted forty-five (45) days following publication

Takeaway:  The AI-specific disclosure requirements set forth in the NPRM are in addition to already existing consent obligations pursuant to the Telephone Consumer Protection Act.  If adopted, the new rules would impose definitions of AI robocalls and texts.  It would require callers using AI-generated content to clearly and conspicuously disclose at the start of the call that AI technology is being utilized.  Also, callers seeking to use AI-generated calls to obtain prior express consumer consent to receive artificial or prerecorded voice calls or autodialed calls would be required to clearly and conspicuously disclose that such consent includes the consent to receive AI-generated calls and text messages.  The NPRM seeks to supplement already existing TCPA disclosure requirements (for example and without limitation, identity and telephone number of the caller).  Proposed exemptions include calls made by an individual with a speech or hearing disability using any technology, including artificial intelligence technologies, designed to facilitate the ability of such individuals to communicate over the telephone.

Consult with an experienced TCPA lawyer to discuss how the NPRM might impact your marketing and non-marketing call and text message strategies, including, but not limited to, disclosures and website agreements.

Richard B. Newman is an Internet Lawyer at Hinch Newman LLP.  Follow FTC defense lawyer on National Law Review. 

Informational purposes only. Not legal advice. This article is not intended to and should be construed as a complete summary or discussion of the NPRM and all of its obligations and restrictions. May be considered attorney advertising.