FCC Proposes New TCPA Rules for AI Calls and Texts

By: Alysa Z. Hutnik & Jennifer Rodden Wainwright (Kelley Drye)

On August 7, 2024, the Federal Communications Commission (FCC) issued a Notice of Proposed Rulemaking and Notice of Inquiry regarding the use of artificial intelligence (AI) in outbound calls and texts. Among the proposed regulations are a definition of an “AI-generated call” and new disclosure requirements for placing such calls. This move is part of the FCC’s ongoing efforts to enforce the Telephone Consumer Protection Act (TCPA) and address what the agency describes as the “top category of consumer complaints.” Initial public comments on the proposed rules will be due 30 days after the notice is published in the Federal Register, with reply comments due 15 days later.

In the Notice of Proposed Rulemaking (NPRM), the FCC introduces the following definition for an “AI-generated call”:

“An AI-generated call refers to a call that utilizes technology or tools to produce an artificial or prerecorded voice, or text, generated through computational technology or machine learning—including predictive algorithms and large language models—that processes natural language to create voice or text content for communication with a recipient via an outbound phone call.”

The NPRM clarifies that this definition applies only to outbound calls, as the TCPA does not regulate technologies used to answer inbound calls. The definition is designed to avoid unintentionally affecting AI technologies used in customer service systems for inbound calls. The FCC is currently seeking public input on this definition.

The NPRM also proposes several disclosure requirements for AI-generated calls and texts, including:

1. Prior Express Consent: Callers making non-marketing calls with AI-generated voices or sending autodialed texts with AI-generated content must provide clear disclosure of their intent to use AI-generated content when obtaining the called party’s consent.
2. Prior Express Written Consent (PEWC): For marketing calls and texts that require PEWC, callers must include a disclosure in their opt-in consent agreements that they intend to use AI-generated voice or text content, and that the recipient specifically agrees to receive calls containing such AI-generated content.
3. Affirmative Disclosure at Call Start: Callers must clearly inform the recipient at the beginning of each call that AI-generated technology is being used.

These AI-specific disclosure requirements would be in addition to existing obligations under TCPA rules.

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