FCC Launches Inquiry to Help Understand AI’s Impact on the TCPA

There are currently no statutes, rules, or regulations that specifically address the type of ChatGPT-style generative Artificial Intelligence (AI) technology that many companies are rushing to incorporate into their business models. Among countless other applications, AI can be used to create new content, including audio, images, text, and videos, which also means it can potentially engage in real-time interactive conversations with a human being using an emulated human voice.

The aspect of AI technology has direct implications for the Telephone Consumer Protection Act (TCPA), and the Federal Communications Commission (FCC) is taking the first steps towards enacting a regulatory framework to govern its usage.

The Rulemaking Process Regarding AI

Federal agencies like the Federal Communications Commission (FCC) have a formal process in place for formulating new rules. Sometimes this process is triggered when Congress enacts a new law that will be enforced by the FCC, but in other cases, the need for new rules may be triggered by the advent of new technology or similar development that potentially falls within the FCC’s jurisdiction, as is the case with AI and the TCPA.

In those cases, the rulemaking process starts with the launch of a Notice of Inquiry (NOI), in which the FCC presents various questions about the technology at issue and seeks input from the public to determine if specific rules to govern its application are warranted.

Prompted by the astounding growth of AI technology, on October 25, 2023, the FCC announced an NOI to investigate the potential impact AI may have in connection with its role of enforcing the TCPA; specifically, as it relates to its longstanding battle against illegal robocalls and robotexts.

The Notice of Inquiry

AI’s uncanny ability to spontaneously generate written, visual, and even video content has taken the world by storm. In addition to leading many creative professionals to fear for their future employment, it has also created new opportunities for those engaged in less-savory professions.

The NOI is focused on AI’s ability to engage in interactive communications with consumers by voice call or text message without the need for human participation. It has not escaped the FCC’s notice that while these technologies can benefit consumers, they can also pose new privacy and safety challenges. Therefore, the NOI seeks to better understand the implications of emerging AI technologies as part of the FCC’s ongoing efforts to protect consumers from illegal calls and texts under the Telephone Consumer Protection Act (TCPA).

What the FCC is Asking

The NOI seeks public comment on the following topics:

1. Whether, and if so how, the FCC should define the term “AI Technology” for the purpose of the inquiry, including the particular AI applications that are relevant to the TCPA.
2. On how AI technologies may impact consumers who receive robocalls and robotexts including any potential benefits and risks that these emerging technologies may create.
3. It is necessary to determine at this point if future types of AI technologies may fall within the TCPA’s existing prohibitions on artificial or prerecorded voice messages.
4. Whether the FCC should consider ways to verify the authenticity of legitimately generated AI voice or text content from trusted sources, such as through the use of watermarks, certificates, labels, signatures, or other forms of labels when callers use AI technology to emulate a human voice or converse via text.
5. What additional steps, if any, the FCC should consider to further its inquiry.

There is one aspect of the TCPA that can be said to apply to AI when it is used to generate a human voice to interact with a consumer over the phone. Absent an exemption or the requisite consent, the TCPA prohibits using an artificial or prerecorded voice in any call placed to a wireless number, and any telemarketing call placed to a landline. See 47 U.S.C. § 227(b)(1).

While most of the focus has been on the “prerecorded” aspect of that prohibition, the question is whether the “artificial” part covers generative AI. Of course, when this part of the statute was written, generative AI did not exist, and “artificial voice” meant the crude computer-generated voices that were in use at the time, so whether the term can be said to apply to modern generative AI is an issue the FCC seems poised to address.

Click here for a full copy of the FCC NOI