Two of the hottest consumer protection topics for state attorneys general (AGs) are robocalls and artificial intelligence (AI). AGs have been prioritizing the fight against robocalls for many years, and AI seems to be on the agenda of nearly every AG conference in recent memory. These two consumer protection issues have intersected in the FCC’s notice of inquiry (NOI) which sought comment to better understand the impact of emerging AI technologies on robocalls and robotexts. Because these two issues are a priority with many AGs, it is not surprising that a bipartisan group of 26 AGs took this opportunity to provide comments.

In the AGs’ comments, they voiced their support for the work of the FCC, other federal regulators, and responsible actors in the telecomm industry who have worked collaboratively to fight illegal robocalls and text messages. The AGs then focused on whether or not calls made through the use of AI should be treated the same as a live agent pursuant to the Telephone Consumer Protection Act (TCPA). This distinction is of great consequence because under the TCPA, robocalls (considered to be calls made using a prerecorded or artificial voice”) are generally prohibited unless the caller gets the prior express written consent of the consumer.

In their comments, the AGs take the position that any type of AI technology that generates a human voice should be considered an artificial voice” for purposes of the TCPA. Consequently, if any TCPA-regulated entity wants to call a consumer using this technology, it should follow the TCPA’s requirements including for express written consent. The AGs also stated the FCC should reject future arguments that a business’s advanced AI technology acts as a functional equivalent of a live agent because it has been programmed to interact with the called party,” citing its past rejection of soundboards.

Businesses that use AI to contact consumers, or are considering doing so, should be on the lookout for potential next steps by the FCC related to the NOI to address issues presented by the intersection of AI and robocalls/robotexts. We know the AGs will be watching.