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The FCC Did Not Ban All AI Robocalls
Political Organizations Can Implement an AI Robocall Program with Certain Restrictions
The Federal Communications Commission (“FCC”) recently claimed that it made “AI-Generated Voices In Robocalls Illegal.”1 Media outlets followed suit, for example, CBS News announced “FCC declares AI-generated voices in robocalls are illegal” and the New York Times proclaimed “F.C.C. Bans A.I.-Generated Robocalls.” But, for political organizations making non-commercial robocalls, these headlines fail to tell the full story. Political organizations can deploy a legal AI robocall program—even after the FCC’s recent ruling—but doing so requires a careful compliance plan.
In this alert—one of a series that Elias Law Group is issuing regarding the intersection of Artificial Intelligence and political law—we explain how political organizations can still legally establish an AI robocall program.
This is intended as a high-level overview regarding a recent FCC decision, not legal advice, and we urge anyone thinking of creating an AI robocalling program to work closely with their legal counsel to ensure compliance with various federal and state laws.
What did the FCC say about AI robocalls?
In short, the FCC clarified that AI robocalls are subject to the same regulation as other robocalls. This removes any ambiguity about whether callers can use AI to avoid regulation.
On February 8, 2024, the FCC issued a Declaratory Ruling announcing that existing laws regulating on robocalls apply to AI-generated robocalls. The Telephone Consumer Protection Act (“TCPA”) has long restricted certain calls made “using an artificial or prerecorded voice.” Although those restrictions predate the creation of “AI” voices that we see today, the FCC’s recent decision explains that AI-generated voices are “artificial voices” for the purposes of the TCPA are therefore subject to the TCPA’s limits.
Does this mean campaigns and political organizations cannot use
AI robocalls?
No, it is still possible for campaigns and political organizations to use AI robocalls for some types of calls—provided they comply with applicable laws and regulations.
Landline Robocall Program. With the proper compliance guardrails, campaigns and political organizations generally can run an AI Robocall program to home landline phones.
The TCPA does not ban robocalls to residential phone lines (i.e., home landlines), even without consent from the called party as long as (1) the calls are not made for a commercial purpose and (2) the caller makes no more than three calls within any consecutive 30-day period to the residential line and honors the called party’s request to opt out of future calls.2 The FCC has explained that non-commercial calls include “conducting research, market surveys, political polling, or similar noncommercial activities.3 In other words, AI robocalls to landlines will be subject to the same restrictions as traditional political robocall programs.
Note that 2024 is the first federal election year in which the FCC’s “TRACED Act” requirements apply to political robocall programs. If your organization has not updated its robocall programs from past cycles to, among other things, include an automated opt-out and have a written do-not-call policy, we recommend discussing these requirements with counsel before engaging in any type of robocalls.
Cell Phone Robocall Programs. If campaigns and political organization receive proper consent to call, then it is even possible to run an AI robocall program to cell phones.4 The TCPA does not prohibit non-commercial calls to cell phones, if the caller receives prior consent to call. The FCC declaratory ruling acknowledges that AI calls may be made with “the prior express consent of the called party to initiate such calls.” Although operating a robocall program that includes cell phones is more challenging because a caller must receive consent prior to calling, campaigns and political organizations may find it worthwhile to obtain this consent by collecting opt-ins. We recommend working with counsel on an opt-in disclaimer and program to ensure it meets FCC guidelines.
Are there other laws to consider before engaging in an
AI robocall program?
Yes, in addition to the TCPA, an AI Robocall program will need to comply with applicable state laws on robocalls, campaign finance disclaimer requirements, and may trigger state laws regarding AI voices and deepfakes (see a recent Elias Law Group update here regarding such laws in Michigan). Using AI in political campaigns is a cutting-edge practice, and we recommend working closely with counsel to review any robocall program in advance of implementation.
Additionally, no organization should ever use AI technology to deceive voters. Failing to state clearly the caller’s true identity at the beginning of an AI robocall violates FCC regulations.5 Moreover, falsely imitating others could invite severe criminal and civil repercussions.
However, one should not view the FCC’s recent ruling as closing the book on political AI robocall programs. With proper attention to legal requirements, responsible and legally compliant AI robocall programs can still be in the toolbox for campaigns and political organizations.
1 Federal Communications Commission, FCC Makes AI-Generated Voices in Robocalls Illegal, (Feb. 8, 2024), https://docs.fcc.gov/public/attachments/DOC-400393A1.pdf.
2 47 U.S.C.A. § 227(b)(2)(B)(i); 47 C.F.R. § 64.1200(a)(3)(ii).
3 Federal Communications Commission, Small Entity Compliance Guide, at 2 (June 5, 2023), https://docs.fcc.gov/public/attachments/DA-23-478A1.pdf.
4 47 U.S.C.A. § 227(b)(1)(A)(iii) (“other than a call made for emergency purposes or made with the prior express consent of the called party); see also 47 CFR § 64.1200(f)(9) (describing consent requirement for commercial calls).
5 47 C.F.R. § 64.1200(b)(1).
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