On November 16th, the Federal Communications Commission (“FCC”) and Federal Trade Commission (“FTC”) announced new independent initiatives regarding the use and implications of AI technologies on consumers in the context of telephone and voice communications.  These initiatives align with the recent Executive Order on Artificial Intelligence and show federal regulators’ expanding focus on existing and anticipated AI issues.

The FCC Notice of Inquiry

The FCC’s Notice of Inquiry (“NOI”) focuses on the use of AI technologies in the context of unwanted and illegal telephone calls and text messages under the Telephone Consumer Protection Act (“TCPA”).  Importantly, through the NOI the FCC seeks to understand not only the potential risks associated with AI, but the potential benefits of AI in the telecommunications sector.

A key focus of the NOI is collecting information to define the term ‘Artificial Intelligence’ for purposes of the TCPA.  Reaching a clear definition will be a critical step in focusing any discussion regarding the use of AI in this context.  The NOI outlines a number of relevant statutory definitions for AI and related terms and seeks to identify any additional information the FCC should consider in defining the term for purposes of the TCPA.  The FCC is specifically interested in the interaction between AI and the TCPA’s existing prohibition on “artificial” voice messages.  The FCC specifically questions “the potential ability of AI technologies to function as the equivalent to a live agent when interacting with consumers”.

Relatedly, the FCC’s NOI seeks to identify the potential benefits of AI technologies for protecting consumers from unwanted and illegal robocalls and robotexts.  The FCC’s questions in this context consider both potential tools to identify and screen calls, as well as new tools that callers could use to better target their calls to specific demographics.

Finally, the FCC is seeking input regarding potential liability for AI developers who design calling systems in a manner that permits or promotes violations of the TCPA.  Controlling liability regarding the implementation and use of AI systems is likely to be a critical TCPA compliance issue moving forward.

The full NOI and list of questions posed by the FCC can be found here.  Comments are due by December 18, 2023.

The FTC’s Voice Cloning Challenge

On the same day, the FTC announced its Voice Cloning Challenge to address the present and emerging harms of AI or AI-enabled voice cloning technologies.  The Voice Cloning Challenge is broader in scope when compared to the FCC’s NOI, focusing on the potential risks and benefits of AI voice cloning technologies in the context of the FTC Act, the Telemarketing Sales Rule, and the proposed Impersonation Rule (proposed by the FTC to combat government and business impersonation scams, permitting monetary recovery and civil penalties against scammers).  The Voice Cloning Challenge is designed to encourage the development of multidisciplinary approaches aimed at preventing, monitoring, and evaluating malicious voice cloning.

The full rules of the Challenge are available here. Submissions must address at least one of three “intervention points:” (1) Prevention or Authentication; (2) Real Time Detection or Monitoring; and (3) Post-use Evaluation.  The FTC has outlined guidelines and timelines for submissions, which are available here.  The top prize winner will receive $25,000, with additional prizes for the runner-up and three honorable mentions.  Final submissions must be submitted between January 2, 2024 and January 12, 2024.