What Is An AI-Generated Call? – Advertising, Marketing & Branding

With AI-generated content
becoming more widespread daily, the Federal Communications
Commission (“FCC” or “Commission”) has
solicited comments from the general public and companies alike in
connection with a recent Notice of Proposed Rulemaking
(“NPRM”). In its NPRM, the FCC seeks
comment regarding, among other things, the definition of
AI-generated calls. The Commission’s proposed definition of
“AI-generated calls” has generated a lot of comments from
interested parties, some of which we discuss below.

Is A Definition for AI-Generated Calls Necessary?

The FCC proposes to
define an “AI generated call” as “a call that uses
any technology or tool to generate an artificial or prerecorded
voice or a 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.”

The large majority of those who have commented explain that the
proposed definition of AI-generated call is unnecessary given that
the FCC already has declared that an
AI-generated call is an artificial or prerecorded voice call for
purposes of the Telephone Consumer Protection Act
(“TCPA”). Commentators claim that further defining
AI-generated calls will lead to: (1) confusion among the
telemarketing industry as to whether their calls and texts fall
within the Commission’s definition of AI-generated calls; and
(2) litigation over whether the technology or tools companies use
to deliver calls/texts are AI-generative. Instead, commentators
propose that the Commission simply rely on the plain language of
the TCPA to determine whether a given call is subject to the
TCPA’s restrictions. In addition, several commentators suggest
that the Commission refrain from regulating AI-generated text
messages because: (1) unlike calls, AI-generated text messages do
not deceive recipients; and (2) AI is frequently used to provide
consumers with certain purely beneficial informational messages,
such as banking fraud alerts, two-factor authentication codes, and
one-time passcode requests.

In addition to defining what an AI-generated call is, the
Commission proposes additional disclosure requirements that should
accompany AI-generated calls/texts. In its current form, the NPRM
would require those that make AI-generated calls to obtain consent
upfront via a clear and conspicuous disclosure that consent to
receive artificial and prerecorded calls includes consent to
receive AI-generated calls. Callers also must disclose that the
call is AI-generated at the beginning of each such call. For
autodialed text messages that include AI-generated content, the
Commission requires callers to provide a clear and conspicuous
disclosure that consent to receive such messages includes consent
to receive AI-generated content. For the same reasons discussed
above, commentators suggest that the Commission’s proposed
disclosure requirements are excessive and unnecessary because the
Commission already declared that AI-generated calls/texts
constitute artificial or prerecorded voice for purposes of the TCPA
and its implementing regulations.

The Future of AI-Generated Calls

The FCC’s AI-generated call rulemaking has garnered a lot of
commentary from companies across all industries. These comments
reflect the delicate balancing act that the FCC must undertake
before adopting an approach which may prevent practical and
beneficial uses of AI-generated content.

Companies that use AI-generated calls and/or texts as part of
their marketing operations should consult with legal counsel to
ensure that their practices comport with the FCC’s latest
rulemaking efforts.

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guide to the subject matter. Specialist advice should be sought
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