AI Hype to Regulatory Reality: Why Understanding TCPA is the Key to AI Compliance
The FCC’s View on AI Voice
States are taking the lead on AI regulation. But, they aren’t the only regulators trying to grapple with how to regulate the use of this technology which appears to accelerating in adoption. The Federal Communications Commission (“FCC”) has addressed the use of AI in relation to the TCPA multiple times. The FCC released a Declaratory Rule in February 2024 that confirmed the phrase "prerecorded or artificial voice" as used in the TCPA included any "prerecorded or artificial voices" generated by AI technologies. As such, an AI generated artificial voice would require prior express consent under the TCPA or prior express written consent if used for telemarketing purposes.
Additionally, the FCC released a Notice of Proposed Rulemaking ("NPRM") in September of 2024 related to the use of AI and how it would apply to the TCPA.
The NPRM introduces, among other things, a definition of AI-Generated Calls and requirements for an AI-Generated Call Disclosure. The proposed definition of AI-Generated Calls per the NPRM is "a call that uses any technology or tool to generate an artificial or prerecorded voice or text using computational technology or other machine learning, including predictive algorithms, and large language models, to process natural language and produce voice or text communication to communicate with a called party over an outbound telephone call." This definition expands the TCPA's current prohibition on artificial or prerecorded voice to include "text messages". The FCC in a footnote explains "We use the term 'call' in this Notice to include text messages, consistent with Commission and judicial precedent."
Texts have traditionally been included in the Commission's TCPA regulations, so the inclusion of text into this definition is not surprising. But, it is different from the Commission's view of "artificial or prerecorded voice" in the past. Additionally, the definition is limited to the use of AI generated voice or text to communicate with a called party over an outbound telephone call. The reasoning behind this limitation was expressed by the FCC in the NPRM because the "TCPA's requirements do not extend to technologies used to answer inbound calls."
The NPRM additionally requires a caller that utilizes an AI-Generated Call (either voice or text) there must be an appropriate AI-Generated Call Disclosure used to get the consumer’s consent.
The AI-Generated Call Disclosure will have three basic requirements:
Callers using AI-Generated Calls must use a disclosure to obtain the consumer's consent to receive artificial and prerecorded calls which may include AI-Generated Calls;
Callers using text messages that would use AI generated content must use a disclosure to obtain the consumer's consent to do so; and
If using AI-generated voice, then the callers must clearly disclose to the called party that the call is using AI-generated technology.
The timing on a final rule based on this NPRM is in the air. The timeframe between comments being due and publication of a final rule is usually a minimum of six months. The comments were due on this NPRM in early October 2024, which would put the earliest publication of a final rule to April of 2025. However, the Trump Administration has been clear that rulemaking is not a priority. In fact, the FCC recently began an inquiry into what current rules should be deleted. Therefore, it does not appear that finalizing the AI rules for TCPA is a priority.
AI Outbound Voice - Old Rules for New Technology?
While AI-generated voice call technology is still improving rapidly, the rules for outbound AI-voice agents will follow the current rules around “artificial or prerecorded calls” since the FCC has stated their intention to treat AI-generated calls as “artificial or prerecorded calls”.
The FCC has “made clear that calls that use [AI technologies that resemble human voices and/or generate call content using a prerecorded voice] fall under the TCPA and the Commission’s implementing rules, and therefore require prior express consent of the called party to initiate such calls…our rule require that artificial or prerecorded voice messages generated by AI technologies must provide certain identification and disclosure information for the entity response for initiating the call.”
1. Prior Express Consent
Because AI-generated voice calls are considered “artificial or prerecorded voice”, these calls require prior express consent. The required level of consent would depend on whether the calls being made are informational calls or telemarketing calls. Informational calls require prior express consent. Telemarketing calls will require prior express written consent.
Therefore, the use of AI-generated voice calls, in and of itself, will require consent. Even if your company’s dialer is not considered an automatic telephone dialing system, then you still need the proper level of consent due to AI-generated voice being considered an artificial or prerecorded voice.
2. Identification and Disclosure Information
The TCPA also lays out several requirements for calls made using artificial or prerecorded voices. Therefore, these specific requirements will also apply to calls made using AI-generated voice.
First, the TCPA has two generally applicable prohibitions to all telemarketing calls: (a) an unanswered telemarketing call cannot disconnect “prior to at least 15 seconds or four (4) rings”, and (b) no more than three (3) percent of all telemarketing calls can be abandoned. For any calls using “artificial or prerecorded voice message…shall not be considered abandoned if the message begins within two (2) seconds of the called person’s completed greeting”. The calls would not be considered abandoned if the message begins within two (2) seconds of the greeting and the caller had prior express written consent to make the call. Additionally, the TCPA requires the caller to maintain records of their compliance with these requirements.
Additionally, the TCPA requires certain disclosures to be made by all artificial or prerecorded voice messages. These disclosures are as follows:
Beginning of the Call
State the identity of the entity responsible for initiating the calls and the identity of the individual caller
During or after the initial message
Clearly state the phone number of the entity responsible for initiating the calls
Within 2 seconds of the initial message
Provide an automated, interactive voice- and/or key press-activated opt-out mechanism for the called person to make a DNC request, including brief instructions on how to use the mechanism.
Takeaways for AI Voice Implementation
For leaders looking to leverage this technology without inviting catastrophic fines, here are the two most important, actionable takeaways:
Treat AI Voice as a Regulated Technology, Not a Loophole.
The FCC’s ruling means there is no grace period for AI voice. Your program must immediately comply with all existing TCPA rules for "artificial and prerecorded voice" calls. This requires consent for all calls made using AI voice. And it means securing the prior express written consent for marketing messages and building compliant scripts with all required disclosures. Don't wait for new rules—the most important ones are already in effect.
Audit Your Consent and Scripts Immediately.
Your single biggest point of failure is your consent process. You must obtain and meticulously document "prior express written consent" for any marketing calls using an AI voice. Furthermore, your call scripts are now under the same microscope. They must be updated to include thedisclosures necessary for all prerecorded calls: the identity of the caller at the beginning of the call, a phone number for your business, and an immediate, automated opt-out mechanism.
