FCC Adopts Declaratory Ruling Confirming AI Voice Calls are Subject to TCPA, Takes Enforcement Action Against Provider Allegedly Originating AI Calls Cloning President’s Voice

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On February 2, the FCC unanimously adopted a declaratory ruling, effective immediately, confirming the seemingly unremarkable conclusion that artificial intelligence (“AI”) generated messages or voice calls fall within the TCPA’s restrictions and the FCC’s rules on the placement of artificial or pre-recorded voice calls. 

The FCC concluded that voice cloning technology falls within the limitations under the TCPA and its rules on the placement of artificial and pre-recorded voice calls, because it artificially stimulates a human voice and when used represents the type of call that the TCPA seeks to protect consumers from.  The Commission similarly determined that calls that use AI technology to communicate with consumers using pre-recorded voice messages are similarly covered by these provisions.  

The FCC’s Press Release and media coverage of the Declaratory Ruling do seem to overstate the import of the ruling by suggesting that AI voice calls are now unlawful.  Instead, the ruling simply confirms that AI-generated calls are subject to the TCPA and FCC rule prohibition on artificial/pre-recorded voice calls to wireless numbers absent appropriate consent of the called party or for an emergency purpose, as well as limitations in the FCC’s rules on artificial/pre-recorded voice calls to residential lines.   

Readers should also note that the FCC confirmed in the Declaratory Ruling that AI voice calls, under existing provisions of the Commission’s rules applicable to artificial and pre-recorded voice calls, must provide certain identification and disclosure information for the entity responsible for initiating the call.  In addition, under the current rules where the artificial or pre-recorded message includes or introduces an advertisement or constitutes telemarketing, it must offer specified opt-out methods to the called party.

While not covered in the Declaratory Ruling, the form of consent applicable to an AI generated call, turns on whether a particular call constitutes telemarketing or introduces an advertisement, for which prior express written consent, a defined term under the Commission’s TCPA rules, is required for such calls to wireless or residential numbers.  In contrast, for non-telemarketing informational calls, only prior express consent would be required for an AI call to a mobile number, with no consent requirement but various limitations on the number of those calls in a given period to a residential number based on the category of caller or call purpose. 

This action also follows an FCC Enforcement Bureau cease and desist letter directed to Texas-based Lingo Telecom (“Lingo”), which apparently originated or transmitted unlawful spoofed robocalls carrying deepfake pre-recorded messages in a voice that was artificially created to sound like President Biden, urging New Hampshire voters to skip the state’s presidential primary.  The Enforcement Bureau directed Lingo to stop originating or transmitting AI-enabled illegal robocalls or otherwise face FCC mandates for other network operators to block traffic from Lingo.