Laws & Regulations around AI Voice Callers - TCPA Laws

1. What Is the TCPA? TCPA (Telephone Consumer Protection Act of 1991):

A federal law regulating certain types of telephone calls, text messages, and fax transmissions. A response to intrusive telemarketing calls interrupting consumers (originally home landlines, now covers cell phones). Why It Matters:

It provides a private right of action for individuals to sue. Statutory damages range from $500 to $1,500 per violation (per call/text). This creates a strong incentive for plaintiffs (and “professional plaintiffs”) to bring lawsuits.

2. Key TCPA Provisions The TCPA has two main sections relevant to marketing calls/texts: Section 227(b) – Restricts use of:

Artificial or prerecorded voice calls (including AI-driven calls). Automatic telephone dialing systems (ATDS or “autodialers”) if they randomly / sequentially generate phone numbers. (The U.S. Supreme Court clarified in Facebook v. Duguid (2021) that an ATDS must use a random/sequential number generator, so many modern dialers are no longer deemed ATDS.) Section 227(c) – Do Not Call (DNC) rules for telemarketing calls:

Telemarketers must honor both the National Do Not Call Registry and internal do-not-call lists (internal opt-outs). Covers “telephone solicitations”—which generally means a commercial sales pitch aimed at residential lines. The FCC has extended the definition of “residential” to cell phones in some contexts, creating potential confusion.

1. Consent Requirements

A. Prior Express Written Consent Required for any telemarketing call (sales pitch) that uses either: Artificial/prerecorded voice An autodialer (if it actually randomly/sequentially generates numbers; rarer nowadays) Applies to calls/texts made to cell phones (and to landlines if it’s artificial/prerecorded). Must be a signed agreement (online checkboxes can qualify) clearly stating the consumer agrees to receive such calls/texts, and that consent is not a purchase condition.

B. Established Business Relationship (EBR) If someone inquired about your product/service, you get a 90-day window to call them without the heightened “prior express written consent.” If they become a customer, you generally have an 18-month window for telemarketing calls under EBR (as long as they don’t revoke or opt out).

C. Revocation of Consent Consumers can revoke consent at any time by any “reasonable” method. After revocation, calls must stop immediately—failure to stop triggers TCPA liability.

D. Upcoming 2025 Rule Changes (One-to-One Consent) The FCC plans to restrict “lead generator” style consents where one checkbox gave permission for multiple, unrelated sellers. Starting January 27, 2025 (if it’s not overturned), one checkbox may only cover one identified seller and only for logically related communications.

1. Text Messages Under the TCPA Text messages are considered “calls” under the TCPA (per FCC interpretation). However, autodialer restrictions are narrower after Facebook v. Duguid. Artificial/prerecorded voice restrictions typically don’t apply to standard SMS/MMS unless a voice message auto-plays. DNC rules do apply to telemarketing texts, so you still need to respect do-not-call lists. Carriers require proof of consent before assigning short codes or 10DLC campaigns, making compliance a bit more straightforward for SMS.
2. Business vs. Consumer Lines Business lines are generally not subject to Do Not Call rules the same way residential lines are. However, many cell phones are used for both personal and business purposes, and some courts (e.g., Ninth Circuit) treat cell phones as “presumptively residential.” Scrubbing for purely business numbers is tricky. A phone used for any personal reason may be treated as residential in a lawsuit, so it’s not a guaranteed safe harbor.
3. Common Pitfalls & “Professional Plaintiffs” Professional Plaintiffs:

Some individuals intentionally sign up (or appear to sign up) for calls/texts in order to later claim a violation and demand settlements. They exploit high statutory damages ($500–$1,500 per call). Businesses often settle to avoid expensive litigation. Consent Verification:

If you rely on purchased or older leads, you risk data being incorrect or phone numbers being reassigned (someone else gets the old number). The FCC maintains a Reassigned Number Database to reduce accidental TCPA violations for numbers that changed ownership.

1. Inbound Calls Are “Safe” TCPA mainly restricts outbound calls (and texts). Inbound calls (where customers call or text you first) do not trigger TCPA restrictions. Experimenting with AI or chatbots for inbound is far lower risk than outbound telemarketing.
2. Other Channels (Email, Social Media, WhatsApp) TCPA does not cover email or direct messaging in apps like WhatsApp or social media platforms—unless it involves a phone number on the public telephone network. Email falls under CAN-SPAM Act, which is less strict than the TCPA. Key CAN-SPAM rules: Clear “from” identification, Physical address, Unsubscribe mechanism, No misleading subject lines. For non-phone-based direct messaging (e.g., Facebook Messenger that does not route via a phone number), the TCPA does not apply.
3. Strategy for Using AI Calls & Texts Obtain Proper Consent

For AI-driven (artificial/prerecorded) voice or autodialed telemarketing, you must have prior express written consent (PEWC). Verify you’re capturing and storing the correct consent language. Live Agent Calls

Live (human) outbound calls are less restricted than AI / pre-recorded calls. Still must comply with DNC rules for telemarketing calls to residential lines. Scrub & Segment

Scrub out numbers on the National DNC Registry if you lack an established business relationship or proper PEWC. Use disclaimers and permission gateways on web forms carefully (e.g., individual checkboxes for each seller). Don’t Over-Communicate

Even with consent, repeated “harassing” calls can attract complaints and regulatory scrutiny. Respect opt-outs (revocations of consent) promptly.

Check Reassigned Numbers

Use the Reassigned Number Database for older leads to avoid calling someone who never consented. Good Record-Keeping

Keep documentation of consent for each contact (forms, timestamps, website capture logs). Helps defend against lawsuits or demand letters.

1. The Future of TCPA and AI More Enforcement & Possibly More Complexity

The FCC and lawmakers remain aggressive about robocall / AI spam, especially due to ongoing scams. Additional disclosures or heightened consent for AI calls could be required soon. Technological “Filtering”

Just like email spam filters, carriers are implementing stir / shaken call authentication and other measures to reduce scam calls, inadvertently also affecting legitimate AI-based calls.

Firm: Roth Jackson (Tyson’s Corner & Richmond, Virginia)

Expertise: Telecom, TCPA compliance and defense in federal class actions

Contact: RothJackson.com

Email: jbowser@rothjackson.com

LinkedIn: Joseph (“Joe”) Bowser

In Short TCPA = high-risk area because each call/text can trigger $500 – $1,500 in damages.

Pre-recorded / AI voice + telemarketing to cell phones or residential lines = requires prior express written consent.

Established Business relationships can reduce compliance burdens, but timing (90 days or 18 months) matters.

Text messaging is considered a “call”; still must follow DNC and other TCPA rules if it’s telemarketing. Business lines are largely exempt from DNC rules, but many “business” cell phones are used personally, creating legal gray areas.

Keep records, secure valid consent, and always honor opt-outs to avoid lawsuits. By adhering to these guidelines - and double-checking with legal counsel for your specific use case - you can drastically reduce the risk of TCPA liability for AI-driven calls and texts.