HWG Client Advisory

By: Jennifer P. Bagg, Steven Fredley, and Daeyeong Kim

On August 7, 2024, the Federal Communications Commission (“FCC” or “Commission”) will vote on a Notice of Proposed Rulemaking (“NPRM”) that seeks comment on a proposed definition for “AI generated call” and proposed rules regarding disclosure and consent for AI-generated calls and texts. The NPRM is the latest in a broader set of FCC actions designed to guide the use of AI in robocalls and robotexts, such as the Declaratory Ruling from February that clarified that the Telephone Consumer Protection Act of 1991 (“TCPA”) applies to robocalls that use a voice generated by AI. (The Declaratory Ruling is discussed in our prior advisory.)  

The NPRM seeks comment on the following items:  

Proposed Definition of “AI-Generated Call.” The FCC proposes to define “AI-generated call” as “a call that uses any technology or tool to artificially generate a 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 content to communicate with a called party over an outbound telephone call.” NPRM ¶ 10. The Commission intends the definition to apply only to outbound calls initiated by a caller to prevent “unintentionally encumbering uses of AI technologies that consumers never interact with and widely used existing customer service technologies on inbound calls.” Id. ¶ 11.  

Proposal for New Disclosure and Consent Requirements for AI-Generated Calls and Texts. Under the TCPA and existing FCC rules, callers are already required, absent an applicable exemption, to obtain prior express consent for informational robocalls and prior express written consent for robocalls that include advertisements or telemarketing. 47 C.F.R. § 64.1200(a)(1)–(3). Such callers must also make certain disclosures at the beginning of each voice call. Id. § 64.1200(b)(1). The NPRM proposes three additional AI-focused rules that require callers using AI-generated artificial or prerecorded voice messages or autodialed text messages to (i) clearly and conspicuously disclose that consent to receive artificial and recorded voice calls “may include consent to receive AI-generated calls,” (ii) clearly and conspicuously disclose that consent to receive autodialed text messages “may include consent to receive AI-generated content,” and (iii) “clearly disclose” when a call is using an AI-generated voice “at the beginning of each call.” NPRM ¶ 13. The proposal also seeks comment on whether consumers should have the option to opt-out of AI-generated calls when giving consent for other types of calls and, if so, how such requirements should mitigate “the risk of abuse by requiring consumers to make multiple opt-out requests to stop unwanted calls.” Id. ¶ 16.   

Proposal to Exempt Artificial and Prerecorded Calls that Help People with Disabilities from TCPA Liability. The FCC proposes to exempt artificial and prerecorded calls from TCPA liability when such calls are “made by an individual with a speech or hearing disability using any technology, including artificial intelligence technologies, designed to facilitate the ability of such individuals to communicate over the telephone.” Id. ¶ 17. The FCC emphasizes that the proposed exemption goes beyond the use of AI technologies. The proposed exemption would apply to both landline and wireless calls, but not to calls that contain unsolicited advertising or telemarketing. Id. ¶¶ 17–22. The Commission also seeks comment on an alternative proposal that would instead change its definition of “‘artificial or prerecorded voice’ in a way that excludes from the requirements of the TCPA the use of technologies that are designed to assist individuals with disabilities to communicate by voice over the telephone network.” Id. ¶ 27.  

Technologies that Detect, Alert, or Block Unwanted AI-Generated Calls. The FCC seeks comment on the “development and availability of technologies on either the device or network level” that can detect, alert, and/or block incoming calls that are potentially fraudulent or AI-generated. Id. ¶ 29. The Commission further requests comments on how it can encourage the development and deployment of such technology and on the need for additional requirements to mitigate the privacy risks associated with efforts to detect, alert, and/or block fraudulent or AI-generated phone calls. Id. ¶¶ 31–36. 

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For more information on the NPRM, please contact Jennifer P. Bagg, Steven Fredley, or Daeyeong Kim.

This advisory is not intended to convey legal advice. It is circulated publicly as a convenience and does not reflect or create an attorney-client relationship.