Ok real quick, but maybe not so quick.

Everyone (I hope) knows that the FTC has sort of declared it illegal to use “robocalls” to call leads purchased from a third-party.

So if you are a lead buyer you CANNOT legally use a “robocall” to contact that lead. Probably.

Of course, no one knows what a “robocall” is since it is not defined in the Telemarketing Sales Rules (TSR), which I pointed out to the FTC not long ago

As best I can tell, however, the FTC’s reference to “robocall” refers to a prerecorded marketing calls under 310.4(b)(1)(v) of the TSR. So that means it is currently illegal–thanks to the FTC’s social media accounts–for a caller to use a prerecorded voice call to contact a purchase lead.

Notice, however, that the TSR only governs “prerecorded” marketing calls.

So that raises the Schrodinger’s Cat question… is the use of AI for outbound messaging currently banned by the FTC in connection with purchased leads?

The answer is below:

I kid. Sort of.

But in seriousness the answer is going to depend on a couple of issues.

First, is the TSR going to be read narrowly or broadly? The TCPA specifically references prerecorded or artificial voice messages–the TSR does not. So the law seems to recognize a difference between the two. But Courts (and the FTC) may collapse the two when interpreting the TSR (we dont know yet because there is no case law on the subject.)

Assuming the courts read the TSR as equally expansive to the TCPA–and they shouldn’t, but they might–then outbound AI marketing calls of any kind are currently illegal in connection with purchased leads. Full stop.

But, for the courts that correctly note the daylight between the TCPA and TSR restrictions there comes a second question–is the AI generating its voice in real time or is it merely splicing bits of prerecorded content together.

If the latter then current FTC guidance related to soundboard and avatar technology–i.e. that such technology does constitute prerecorded voice calling–seems applicable and the AI outbound call would be illegal.

If the former–i.e. that the AI voice is truly generative and being created in real time–then a fair read would be to say that the AI is not a prerecorded voice but an artificially created one. Hence the TSR restriction does not apply.

Those of you interested in using virtual agents or other forms of outbound AI technology need to keep these issues in mind. While these new outreach tools have great promise–and some of them are super cool–there are various risks that need to be considered as we move into uncharted territory.

Unfortunately the FTC likely will not provide clear prospective guidance here. Lately they’ve just been taking positions via LinkedIn and lawsuits. So you may not know that what you’re doing today is illegal until you find out about it years later. Its unfair–and probably unconstitutional–but that’s TCPAWorld for you.

So there you go.

Outbound AI is perfectly legal, unless the FTC’s informal TSR guidance is now the law, which it might be, in which case it is illegal if the voice is not generated in real time, unless that distinction doesn’t matter–and it may not–in which case it is always illegal when used in connection with a purchased third-party lead.

And that’s as clear as anyone can be right now.

See you next time folks.