FCC Targets AI Robocalls and Changes Robocall/Robotext Consent Revocation Rules, by Richard J. Perr, Esq., 4-2-2024

Businesses subject to regulation under the Telephone Consumer Protection Act (TCPA) should take heed of recent rulings by the Federal Communications Commission (FCC) that deal with both AI-generated robocalls and the process for consumers to revoke consent to robocalls and robotexts.

In a declaratory ruling effective immediately, the Commission clarified that calls made with AI-generated voices are “artificial” under the TCPA. Subsequently, the TCPA’s restrictions on the use of an “artificial or prerecorded voice” applies to current AI technologies that generate human voices, making voice cloning technology used in common robocall scams targeting consumers illegal, the FCC said.

Prior Express Consent

According to the ruling, “calls that use such technologies fall under the TCPA and the Commission’s implementing rules, and therefore require the prior express consent of the called party to initiate such calls absent an emergency purpose or exemption.” The ruling comes on the heels of a highly publicized incident involving a fake robocall that mimicked President Biden’s voice and urged voters not to vote in the New Hampshire Primary Election. The FCC ultimately issued cease-and-desist letters against the companies allegedly linked to the robocall.

According to the Commission’s declaratory ruling, among provisions:

• Callers that use such technologies must obtain the prior express consent of the called party to initiate such calls absent an emergency purpose or exemption.
• In addition, the rules require that all artificial or prerecorded voice messages must provide certain identification and disclosure information for the entity responsible for initiating the call.
• In every case where the artificial or prerecorded voice message includes or introduces an advertisement or constitutes telemarketing, it must also offer specified opt-out methods for the called party to make a request to stop calling that telephone number.

These requirements are applicable to any AI technology that initiates any outbound telephone call using an artificial or prerecorded voice to consumers.

TCPA Consent Revocation Rules

 Separately, the FCC issued a Report and Order and Further Notice of Proposed Rulemaking adopting new rules that when fully implemented will make it simpler for consumers to revoke consent on unwanted robocalls and robotexts while requiring that callers and texters honor these requests in a timely manner.

The rules make clear that revocation of consent:

• Can be made in any reasonable manner;
• Requires that callers honor do-not-call and consent revocation requests within a reasonable time not to exceed ten business days of receipt; and,
• Limits text senders to a one-time text message confirming a consumer’s request that no further text messages be sent under the TCPA.

The Commission also adopted a standardized list of the specific words that may be used to revoke consent via a reply text message to ensure that automated systems can process such requests. Specifically, the Commission finds that using the words “stop,” “quit,” “end,” “revoke,” “opt out,” “cancel,” or “unsubscribe” via reply text message constitutes a per se reasonable means to revoke consent. This does not preclude, however, the use of other words and phrases to revoke consent.

According to the FCC, the order codifies:

• The Commission’s 2015 ruling that consumers can revoke consent under the TCPA through any reasonable means; and,
• The Commission’s 2012 ruling that clarified that a one-time text message confirming a consumer’s request that no further text messages be sent does not violate the TCPA as long as the confirmation text merely confirms the called party’s opt-out request and does not include any marketing information.

An effective date of April 4 applies to the parts regarding the one-time text message confirming the request to revoke consent. It is not clear when the other provisions will take effect as an update in the Federal Register now notes that the other amendments are “delayed indefinitely,” pending review by the Office of Management and Budget (OMB).  The Commission will publish a document in the Federal Register announcing the effective date of those rules and issue a Public Notice once the date has been established.

In the meantime, with the FCC’s ongoing focus on AI and its continued crackdown on robocalls and robotexts, companies need to ensure they are in compliance with existing regulations and should consider consulting with counsel to review internal processes and compliance protocols and make any necessary adjustments.

Kaufman Dolowich Can Help

The attorneys in our Financial Services and Institutions team at Kaufman Dolowich are well-versed in the constantly changing regulatory landscape that defines the financial services industry. If you need assistance in complying with these recent rulings or any other TCPA matter, we can help.