On February 8, 2024, the Federal Communications Commission (FCC) issued a News Release titled “FCC Makes AI-Generated Voices in Robocalls Illegal.” Despite this attention-grabbing headline, the FCC’s unanimous Declaratory Ruling does not go so far as to prohibit all AI-generated voices in robocalls. Instead, it confirms what the FCC suggested in its sweeping November 16, 2023, Notice of Inquiry, namely that existing Telephone Consumer Protection Act (TCPA) restrictions apply to AI-generated voices when they are used in robocalls, and companies using Artificial Intelligence in their telemarketing should carefully ensure their use complies with TCPA regulations.

The FCC’s Ruling does not come as a surprise. As we noted following the publication of the Notice of Inquiry, the FCC is concerned that AI is quickly making it cheaper and easier for companies utilizing telemarketing in their sales to make robocalls using convincing human voices. While consumers can sometimes still identify AI-generated voices due to their tone or cadence, AI-generated voices are becoming increasingly difficult to distinguish from live human voices. In the Notice, the FCC noted that it believes that existing AI-generated voice technologies, including “voice cloning,” are covered by the TCPA because they use an “artificial” or “prerecorded voice” within the meaning of the statute.¹

What Qualifies as an “Artificial” or “Prerecorded Voice?”

The FCC provided additional clarity of what AI technologies qualify as an “artificial” or “prerecorded voice,” terms that the TCPA does not define. The FCC explained that AI technologies that “emulate real or artificially created human voices” for calls are “artificial” voices because “a person is not speaking them.”² Thus, “voice cloning” and similar technologies are “artificial” voice messages for TCPA purposes. AI-generated technologies that incorporate recordings of real human voices also qualify as “prerecorded voices” under the TCPA.³ The Ruling underscores that what matters for TCPA purposes is whether the call is a real person speaking in real time. AI-technology that attempts to approximate interacting with a live person is not exempt from TCPA regulation.⁴

What Are the Limitations for Using AI-Generated Voices?

The Declaratory Ruling limits the use of AI-generated voices in robocalls, but it does not impose a total ban, as some headlines have suggested. Instead, it clarifies that callers who choose to employ AI-generated voices must comply with existing TCPA regulations.

First, as with pre-recorded voice calls, telemarketers must obtain “prior express consent” from the called party before using an AI-generated voice in a call.⁵ In addition, and again as with pre-recorded voice calls, telemarketers who use AI in robocalls to solicit sales must first obtain express written consent from the called party.⁶ As we previously covered, a prior FCC Order held that this express written consent must be obtained on a one-to-one basis.

Second, calls made using an AI-generated voice must identify the calling party and provide their contact information.⁷ Specifically, at the beginning of the call, the call must “state clearly the identity of the business, individual, or other entity that is responsible for initiating the call.”⁸ And, at some point during or after the message, the call must “state clearly the telephone number” for the caller.⁹

Finally, for advertising or telemarketing calls, the TCPA still requires telemarketers to provide an “automated, interactive” method for the called person to opt out of future communications, even when using an AI generated voice.¹⁰

Conclusion

While this Ruling does not make AI-generated voice calls illegal, it does make clear that the FCC will be treating such calls in the same framework as pre-recorded voice calls. Companies that employ telemarketing as part of their sales that are considering using AI should therefore carefully review their consent forms and call scripts to ensure their use complies with the FCC’s new Ruling.

_{1 Notice of Inquiry, paragraph 25.}

_{2 Ruling, paragraph 5.}

_{3 Ruling, paragraph 5.}

_{4 Ruling, paragraph 6.}

_{5 Ruling, paragraph 5.}

_{6 Ruling, paragraph 5 n.13.}

_{7 Ruling, paragraph 9 n.28.}

_{8 7 CFR § 64.1200(b)(1).}

_{9 7 CFR § 64.1200(b)(2).}

_{10 Ruling, paragraph 9 n.29; 7 CFR § 64.1200(b)(3).}

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