The Effect of New AI Technologies on the TCPA
**Attorney Advertising**

BACKGROUND
In 1991, the Telephone Consumer Protection Act (TCPA) was passed to maintain “normal, expected or desired communications between businesses and their customers.”¹ The primary functions that the TCPA regulates are (1) the use of artificial or prerecorded voice and (2) the use of any automatic telephone dialing system (ATDS).² Specifically, these functions are prohibited to any cell phone number, any emergency telephone line, or the telephone line of any guest room or patient room of a health care facility with the exceptions of emergency calls or authorized prior consent.³ Additionally, the TCPA requires companies to adhere to the National Do Not Call Registry as well as any internal company do not call lists.⁴ In 2012, the FCC revised TCPA rules to require businesses to get signed written consumer consent for automated calls to cell phones while still allowing consumers to opt-out.⁵

ISSUE 1: ARTIFICIAL VOICE
As generative AI technologies become more advanced, there is a greater ability for people to create realistic-sounding artificial voices. In January 2024, primary voters in New Hampshire received AI-generated robocalls imitating President Joe Biden’s voice.⁶ The technology to create synthetic voices that can emulate real humans and the capacity to deploy those voices via mass robocalling creates potential concerns for violations of the TCPA.

The Federal Communications Commission (FCC) responded to these concerns in February 2024 by publishing an official declaration that AI-generated voices constitute synthetic voices for TCPA purposes.⁷ Essentially, under this declaration, businesses are not allowed to utilize AI-generated voices in phone calls to consumers without their consent. The enforcement for this facet of the TCPA largely falls under the jurisdiction of State Attorneys General offices.⁸

The implications of AI-generated synthetic voices on the TCPA are profound, creating a new landscape for potential litigation. The FCC’s declaration that AI-generated voices are classified as synthetic voices under the TCPA means that businesses must navigate additional regulatory hurdles to avoid significant penalties. The ability of AI to produce highly realistic, human-like voices increases the risk of unauthorized and deceptive communications, amplifying concerns about privacy and consumer protection. Consequently, businesses must ensure they have explicit consent from consumers before using AI-generated voices, or they risk facing enforcement actions from State Attorneys General and private litigations. This new interpretation of the TCPA opens the door for a wave of lawsuits, as individuals and advocacy groups may seek to hold companies accountable for non-compliance. As a result, businesses must remain vigilant and proactive in adhering to these regulations to mitigate the risk of costly legal battles.

ISSUE 2: DO NOT CONTACT LIST AND AUTOMATIC TELEPHONE DIALING SYSTEM
The increasing reliance on AI in creating calling lists poses a potential problem for companies that are required to not contact individuals on the National Do Not Contact Registry and internal company no call lists. Many sales teams are utilizing automation for data entry, lead qualification, and initial customer engagement.⁹ In the absence of human oversight, the AI processes might violate data privacy and compliance with regulations like the TCPA.¹⁰

On December 13, 2023, the FCC adopted new rules that protected consumers from “lead generator” practices utilized robocalls and robotexts.¹¹ Specifically, these rules allow the FCC to (1) “‘red flag’ certain phone numbers which would require mobile carriers to block texts from those numbers”, (2) extend Do-Not-Call list protections to text messages, and (3) close the “lead generator” loophole.¹² Prior to the closing of the “lead generator” loophole, consumers had a single opt-in for their phone numbers to be shared across many telemarketing lists; the FCC’s new rules closed this loophole by requiring that businesses receive a new consumer consent agreement for each business that acquires their contact information.¹³

The use of AI to generate call lists presents significant challenges for businesses adhering to the TCPA’s Do Not Call List and regulations governing ATDS. AI-driven systems, while efficient, may inadvertently include individuals who have opted out of such communications, leading to potential TCPA violations. The December 2023 FCC rules further complicate matters by extending Do Not Call List protections to text messages and implementing stringent measures to close the “lead generator” loophole. This means that businesses must obtain explicit consent from consumers for each new entity that seeks to contact them, ensuring a higher level of compliance and reducing the risk of unauthorized communications. The integration of AI in call list generation demands rigorous oversight to prevent inadvertent breaches of TCPA regulations and safeguard consumer privacy.

The implications of these developments for litigation are substantial. With the FCC’s new rules in place, businesses face increased scrutiny and potential legal action if they fail to comply with the expanded Do Not Call List protections and consent requirements. The automation of call lists by AI systems could lead to inadvertent violations, exposing companies to class action lawsuits and significant fines. Moreover, the closing of the “lead generator” loophole means that companies can no longer rely on broad consent agreements, necessitating more precise and diligent consent management practices. As a result, businesses must enhance their compliance protocols and continually monitor their AI systems to avoid litigation risks and ensure adherence to the evolving regulatory landscape.

CONCLUSION
With the rise of AI, there may potentially be a litigation trend around the use of AI sparking TCPA lawsuits. The advancements in AI-generated synthetic voices and AI-driven call list generation have significantly increased the potential for TCPA violations. The FCC’s recent declarations and rule changes emphasize the growing regulatory focus on these issues, signaling an environment ripe for increased litigation. Businesses must navigate a complex landscape of compliance, requiring explicit consumer consent and rigorous oversight of AI systems to avoid costly legal battles. As AI technologies continue to evolve, the likelihood of TCPA-related lawsuits will increase, highlighting the need for proactive measures and adherence to regulatory requirements.

¹Shay Dvoretzky et al., The Evolving Telephone Consumer Protection Act Landscape Post-Duguid, Skadden (2022), https://www.skadden.com/insights/publications/2022/04/quarterly-insights/the-evolving-telephone-consumer-protection-act (last visited Jun 11, 2024).
² The Telephone Consumer Protection Act of 1991, 47 U.S.C. 227 (1991), https://www.law.cornell.edu/uscode/text/47/227 (last visited Jun 11, 2024).
³ Id.
⁴ What is TCPA Law?, Winston & Strawn, https://www.winston.com/en/legal-glossary/tcpa (last visited Jun 11, 2024).
⁵ Id.
⁶ Ali Swenson, Tests Find AI Tools Readily Create Election Lies from the Voices of Well-Known Political Leaders, ABC News (2024), https://abcnews.go.com/US/wireStory/tests-find-ai-tools-readily-create-election-lies-110712049 (last visited Jun 11, 2024).
⁷ FCC Declaratory Ruling In the Matter of Implications of Artificial Intelligence Technologies on Protecting Consumers from Unwanted Robocalls and Robotexts, FCC (2024), https://docs.fcc.gov/public/attachments/FCC-24-17A1.pdf (last visited Jun 11, 2024).
⁸ Jon Brodkin, FCC to Declare AI-Generated Voices in Robocalls Illegal under Existing Law, Ars Technica (2024), https://arstechnica.com/tech-policy/2024/02/fcc-to-declare-ai-generated-voices-in-robocalls-illegal-under-existing-law/ (last visited Jun 11, 2024).
⁹ Neil Sahota, The AI Revolution In Lead Generation: Navigating New Business Frontiers, Forbes (2024), https://www.forbes.com/sites/neilsahota/2024/01/17/the-ai-revolution-in-lead-generationnavigating-new-business-frontiers/ (last visited Jun 11, 2024).
¹⁰ Id.
¹¹ FCC Adopts New Rules To Close the “Lead Generator” Robocall and Robotexts Loophole and Facilitate Blocking of Unwanted Robotexts, FCC (2023), https://docs.fcc.gov/public/attachments/DOC-399082A1.pdf (last visited Jun 11, 2024).
¹² Id.
¹³ Id.