Welcome to the Research Assistant Weekly Newsletter - a subscriber-only resource for insight into emerging compliance challenges, details on peer calls, and links to new Research Assistant reports, documents, tools, and more.
On February 8, 2024 the Federal Communications Commission (FCC) issued a declaratory ruling stating that artificial intelligence generated voices in robocalls is illegal without prior express written consent. This shouldn’t come as a shock since the Telephone Consumer Protection Act (TCPA) has always stated that calls using an automatic telephone dialing system, or artificial or prerecorded voice are prohibited unless prior express written consent is obtained by the consumer. Still AI voice services have flooded our industry in the last year so how can companies safely utilize this technology without running afoul of the TCPA.
First, it’s important that organizations fully understand what they need to capture to obtain consent. Is it enough to just state a general catch all statement, “Can we call you using an automated dialing system”? Probably not, it would be a lot more defensible if you specifically call out the types of communication and use the terminology within the TCPA. An example you could get approved from your legal counsel may be, “Do you consent to receiving communications using a prerecorded message, an artificial voice, text or electronic message or calls that may be made using an automatic dialing system, to this phone number or any other phone number on your account”?
Make sure you also consider that the TCPA states that express written consent is only valid with the same number consumer name and phone number pairing at the time of consent. If a consumer, who had previously provided express written consent, changes their number, or a new number is identified in skiptracing, the consent is now void. Your controls should include an audit for this, and tracking the source of the phone number along with consent.
The FCC has stated that written consent can be obtained on paper or through electronic means, including website forms, a telephone keypress, etc. That means capturing consent on inbound calling, and through self-service consumer websites can be captured systemically. Arguably the biggest selling point of the AI voice services is the ability to perform outbound calling without the need for a live person to be available. The risk of TCPA class actions increases greatly if you use this technology to perform outbound calling campaigns.
To mitigate these risks, organizations must have through policies and procedures for the management of written consent, along with controls to ensure outbound calls are not being made to phone numbers that do not have prior express written consent captured in a way that can be evidenced.
Documents and Crowdsourced Materials:
Top Reads:
Upcoming Webinars/ Other Announcements:
|
