Readers of this blog know that the Federal Communications Commission (“FCC”) declared that telemarketing calls utilizing artificial intelligence (“AI”) are subject to the Telephone Consumer Protection Act’s (“TCPA”) restrictions on “artificial or prerecorded voice” transmissions. With the use of AI becoming more prevalent, several states have taken steps to regulate the use of AI in calls to consumers. Below, we discuss: (1) a few states that have regulated the use of AI during calls; (2) what companies operating in these states must do to comply with these state-specific AI call regulations; and (3) practical guidance for companies employing the use of AI in calls to consumers.
State-Specific Regulation of AI Calls
Because AI calls fall within the ambit of the TCPA, certain AI calls made to consumers, without their prior express consent, violate the TCPA. In the absence of any comprehensive federal law regulating the use of AI calls, some states have enacted regulations focused on the use of AI in calls to consumers. California, for instance, requires businesses to first: (1) notify the call recipient, with a natural voice (i.e., live caller), that an artificial voice will follow; (2) provide details regarding the call’s nature and the calling party’s contact information; and (3) obtain consent before playing the AI or prerecorded message. Maine’s “Act to Ensure Transparency in Consumer Transactions Involving Artificial Intelligence” requires a clear and conspicuous disclosure to consumers that they are interacting with an AI voice or chat system to avoid potentially misleading them into thinking it is human. Similarly, companies operating in Utah (note, that Utah laws regarding the use of AI differ for occupations requiring a license or state certification) must disclose, clearly and conspicuously, the use of generative AI if consumers request it. This disclosure must be provided at the outset of a verbal communication and electronically before an electronic communication with consumers.
California, Maine, and Utah are only a few examples of states that regulate the use of AI in telemarketing calls. Many states, including those discussed herein, regulate the use of AI in other areas, including: (1) healthcare and politics; and (2) AI used by companies to automate decision-making processes and in the profiling of consumers. Until comprehensive federal legislation is enacted, this patchwork of state-by-state AI regulation exposes companies to a litany of legal landmines.
Complying with AI regulations, the TCPA, and other federal and state telemarketing laws requires guidance from attorneys who are at the forefront of the telemarketing law space.
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