Recent FCC ruling on AI calls will likely test TCPA’s limits

Last summer, the 9th Circuit showed the limits of applying old statutes to newer technology when it held that promotional text messages not containing audio could not violate the Telephone Consumer Protection Act’s (TCPA), 47 USC § 227 prohibition against sending communications with “an artificial or prerecorded voice.” See Trim v. Reward Zone USA LLC, 76 F.4th 1157, 1162 (9th Cir. 2023). Last week, the FCC teed up the question of whether calls using a much newer technology fall within the same prohibition. The FCC issued a Declaratory Ruling prohibiting calls made with artificial intelligence (AI) to customers without their consent. Courts will need to decide whether that ruling aligns with the TCPA.

The TCPA makes it unlawful to “make any call,” with limited exceptions, “using … an artificial or prerecorded voice.” 47 U.S.C. § 227(b)(1)(A). The FCC’s initial approach to AI calls suggested it might interpret such calls as falling outside the TCPA’s ambit because they are not made using an “artificial … voice.” In its Notice of Inquiry issued last fall, the FCC acknowledged “the potential ability of AI technologies to function as the equivalent to a live agent when interacting with consumers.” NOI at ¶ 13. The FCC also asked whether “AI technology can minimize the nuisances associated with the use of artificial or prerecorded voice messages by acting as the functional equivalent to calls with live agents.” Id. at ¶ 17. The FCC’s initial approach to AI calls in this Notice of Inquiry signaled a potential willingness to find such calls are not made using an “artificial … voice” because the voice on the other line shared a live agent’s capability for spontaneous reaction. In contrast, a dictionary definition of “artificial” is “lacking in natural or spontaneous quality.” Artificial, Merriam-Webster, https://www.merriam-webster.com/dictionary/artificial (last accessed Feb. 13, 2024).

In the wake of the FCC’s Notice of Inquiry, attorneys general from 26 states submitted a joint comment asking the FCC to clarify that the TCPA’s prohibition on artificial voice calls or messages applies to AI-generated voices. The State AGs urged the FCC to clarify that “any type of AI technology that generates a human voice should be considered an ‘artificial voice’ for purposes of the TCPA.”

The FCC responded last week, issuing a Declaratory Ruling making clear that it ultimately considered the TCPA’s prohibition on calls using an “artificial … voice” as covering calls made using current AI technology. As the FCC explained, “the TCPA’s restrictions on the use of ‘artificial or prerecorded voice’ encompass current AI technologies that generate human voices.” Declaratory Ruling at ¶ 2. “As a result, calls that use such technologies fall under the TCPA and the Commission’s implementing rules, and therefore require the prior express consent of the called party to initiate such calls absent an emergency purpose or exemption.” Id. In support of its interpretation, the FCC cited dicta from Trim stating that “an artificial voice is a sound resembling a human voice that is originated by artificial intelligence.” Id. at ¶ 5 n.16.

The FCC, however, will not make the final call on this matter. It will be up to courts to decide whether the position the FCC adopted in its Declaratory Ruling is the correct one, or whether the approach floated in the Notice of Inquiry—that AI calls’ capability for spontaneous dialogue render them something other than artificial—is a better interpretation of “artificial” under the TCPA. Either way, this issue shows the ongoing struggle courts and regulators will have as they continue to grapple with whether new technology fits neatly into existing legislation.