New Technologies; Old Laws

As AI technology continues its advancement into existing business processes, it’s important to remember that while the United States lacks a comprehensive AI law or regulation specific to the technology, existing laws often apply to these new use cases.  One such application involves the use of AI to make automated calls for businesses, including appointment and payment reminders, scheduling services, and promotional calls. These calls may be subject to the Telephone Consumer Protection Act (the “TCPA”), which applies strict requirements for certain calls, even when made in the course of a business relationship. The TCPA applies to the following types of communications:

• Telephone calls made using an automatic telephone dialing system;
• Telephone calls made using an artificial or prerecorded voice; and
• Text messages made using an automatic telephone dialing system.

The TCPA provides a complex framework for the type of consent required and the facilitation of opt-outs from these automated calls and texts depending on whether the message is informational or promotional in nature. In recent years, additional focus has been placed on the systems that makes these calls and texts because of the changing interpretation of what constitutes an “automatic telephone dialing system.”  The current interpretation, after the seminal Supreme Court case of Facebook, Inc. v. Duguid, 592 U.S. 395 (U.S., 2021), defines an “automatic telephone dialing system” as a system that has the capacity to store or produce numbers using a random or sequential number generation, whether or not the system is used in that particular capacity for any given call.  This is a narrower definition than what was previously in place and allows many systems to avoid classification as an automatic telephone dialing system, which would take many types of communications outside the purview of the TCPA.  However, newer solutions that provide the use of AI to facilitate the conversation are brought back within the purview of the TCPA because of the use of an artificial voice.

An important facet of the TCPA is that it provides individuals a private right of action to pursue claims against businesses that violate the law.  Over the years this has produced extremely costly litigation, including class actions lawsuits, for businesses across all sectors.  The risk of suit has also led many technology providers to contractually require businesses to remain fully responsibility for full compliance with the TCPA.  With the growing availability of AI solutions for business calls, it is a good time to review your organization’s practices and assess compliance with the TCPA.