On February 8, 2024, the Federal Communications Commission (FCC or Commission) released a Declaratory Ruling to clarify that telemarketing and other calls made to consumers using certain types of artificial intelligence are subject to restrictions set forth in the Telephone Consumer Protection Act (TCPA), and therefore are unlawful unless the caller has the requisite consent from the consumer recipient.

Specifically, the FCC concluded that "AI technologies that resemble human voices and/or generate call content using a prerecorded voice" fall within the scope of "artificial or prerecorded voice" calls that are regulated under the TCPA. In reaching this conclusion, the FCC focused on the ability of AI technologies to simulate or "emulate real or artificially created human voices for telephone calls to consumers," and how such capabilities might be used in a way that is harmful to consumers. The FCC did not delineate exactly what "technologies" are encompassed in the Declaratory Ruling, except to highlight "voice cloning" as an example of a covered technology. Additionally, seemingly in response to comments filed last month by 26 state attorneys general, the Declaratory Ruling notes that "the TCPA does not allow for any carve out of technologies that purport to provide the equivalent of a live agent."

In light of ongoing attention to AI issues across all industries, and the particular regulatory scrutiny on prerecorded message calls, it would be prudent to construe this ruling broadly, and for impacted businesses to strictly adhere to the FCC's directive that "callers must obtain prior express consent from the called party before making a call that utilizes artificial or prerecorded voice simulated or generated through AI technology," and obtain prior express written consent for any such calls that "introduce an advertisement or contain telemarketing." AI-generated calls also will be subject to identification and disclosure requirements "for the entity responsible for initiating the call" and for advertising/telemarketing calls, they must also include an opt-out mechanism.

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