On January 31, 2024, Federal Communications Commission ("FCC") Chairwoman Jessica Rosenworcel released a statement proposing that the FCC impose blanket restrictions on the use of artificial intelligence ("AI") in telemarketing. Chairwoman Rosenworcel suggested that the FCC issue a Declaratory Ruling making clear that AI-generated voices are "artificial." If deemed artificial, AI telemarketing calls, would then be considered illegal under the Telephone Consumer Protection Act ("TCPA") if placed without consumer consent. As our readers are aware, a coalition of 26 State Attorneys General recently asked the FCC to consider such an approach.
The FCC appears to be gearing up for a rulemaking on the use of AI in telemarketing. As the technology continues to evolve at a breakneck pace, on November 15, 2023, the FCC issued a Notice of Inquiry ("NOI") on the likely impact of AI on telemarketing practices. In her statement, Chairwoman Rosenworcel states that "the FCC is taking steps to recognize [AI] technology as illegal under existing law, giving our partners at State Attorneys General offices across the country new tools they can use to crack down on these scams and protect consumers." Chairwoman Rosenworcel's views may not necessarily represent those of all FCC Commissioners. Nevertheless, businesses utilizing AI telemarketing, in any form, need to pay close attention to the FCC's upcoming rulemaking.
Why does Chairwoman Rosenworcel View AI Telemarketing as Problematic?
According to Chairwoman Rosenworcel, AI use in telemarketing is "already sowing confusion by tricking consumers into thinking scams and frauds are legitimate." Chairwoman Rosenworcel believes that much of the consumer public could be targeted by calls using AI technology to imitate the voice of a politician or a close relation. As our readers may be aware, New Hampshire residents recently received calls that utilized AI to generate President Joe Biden's voice, urging them not to vote in the State's primaries.
The TCPA is the primary law that the FCC uses to protect consumers from such "junk calls." Under the TCPA, it is unlawful "to initiate 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." If AI-generated voice is considered "artificial" within the meaning of the TCPA, telemarketers would need to obtain prior express written consent before delivering marketing calls utilizing such technology.
In her statement, Chairwoman Rosenworcel notes that over half of the State Attorneys General support this bright-line approach on the use of AI by the telemarketing industry. This approach, Chairwoman Rosenworcel states, is part of a continued partnership between the FCC and law enforcement to identify and eliminate illegal robocalls. Attorney General Michelle Henry, who led the coalition of 26 Attorneys General, responded to the statement, commending Chairwoman Rosenworcel for taking "this timely action to ensure consumers have the ability to provide prior written consent before receiving calls with A.I. technology serving as a live agent."
Why are the AGs' Comments Relevant to your Business?
In their Reply Comments, the AGs asked the FCC to make clear that any voice messages that are generated by AI should be considered "artificial voice," as contemplated by the TCPA. The FCC Chairwoman has now responded, supporting the AGs' position.
Interested parties must now see if the FCC formally adopts this broad approach to AI telemarketing. Against this backdrop, telemarketing companies that utilize voice generation technology should consult with legal counsel in anticipation of any future rulemaking on this issue.
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