The Legal Wall Blocking Outbound AI Generated Calls

Josh, how are you doing today?

I'm doing great. How are you doing, Scott?

Good. So another volley rally, another one that I'm doing instead of Jake. So I hope it's okay. But I've got a great topic today. So Josh is our compliance lawyer and Josh just to kind of credential because the topic is very, very apt and on dealers minds. But what do you do for volley?

Yeah, so I provide TCPA and privacy and other compliance advising services. Try to, you know, keep, keep you out of trouble and hopefully maybe even keep some of your clients out of trouble.

Yeah, I hear you. Okay, well Josh is an expert, great lawyer. What's on our mind today is, is AI and the TCPA and how that, you know, how you work with it. We get a lot of dealers asking us about outbound AI and I wanted to talk about that today. Does that sound okay?

That's great. Yeah.

Okay, so when we talk about AI, there's generally a couple of kinds or in regards to dealing with customers, we've got inbound and outbound. Well, inbound is very common for service appointments and such. What about outbound, what are the options for dealers to do outbound calls with a robot?

Yeah, so like you said, inbound is very common. Don't really have any worries about inbound. That's not an issue. On the outbound side things get a little complicated. Now you can do it, but there are a variety of rules you need to follow. So let's talk about marketing calls using AI. And really for purposes of this conversation we're talking AI voice.

Right. So I've got a couple SMS questions, robocalls, et cetera. But yeah, yeah.

So in the outbound context for marketing, the first thing is you need consent. You need prior express written consent to use AI for an outbound marketing call. The second thing is the AI needs to have certain, we'll call them disclosures and functions. So in that outbound communication you need to identify who's calling, the purpose of the call. Just like on any other marketing call, but uniquely you also need to include an interactive voice or key press operated do not call mechanism and tell the consumer how to use that. So for example, you know, you might say if you don't want to receive any future marketing calls from us, press 1 or just say opt out. Right. Something like that. That system then needs to automatically do not call that consumer. If that AI voice could get left on a voicemail, then you also need to include in that communication a toll free number that'll connect the consumer directly to that IVR or key press operated mechanism to opt out. So just some rules there that we need to follow. I think consent is the one that at least I see dealers struggle with sometimes the most is capturing that consent, keeping that good record of that consent. But yeah, you can totally use AI in an outbound context if you just follow the rules.

Okay, there's two things we're going to break down there. The first is consent and the second is managing the disclosures and opt outs. I mean, let's face it, you said you can do it. It's not super practical, is it?

It's, it's not really. And we're not even talking about state rules. You know, every state has its own set of laws and, and.

Let'S talk first. So nowadays with the, with the carriers, consent needs to be very specific, right?

And, and consent, the, the TCPA defines prior express written consent as having certain disclosures, it's obtained in writing. If it's obtained electronically, it's done in accordance with the E Sign Act. And of course the caller has to bear the burden of proof to prove that consent.

Without consent it is, it's governed as pre recording laws, the same as pre recording laws like ringless voicemail, is that right? And it's very dangerous to do so.

Artificial intelligence is an artificial voice which is the same as a pre recorded voice for purposes of TCPA compliance. So the same, the same kind of rules apply.

What about. Because let's, let's talk sms. A lot of dealers are using SMS for whether service or sales for lead follow up lead campaigning is SMS govern the same way.

So SMS is a little easier. There was a case, it's probably about a year and a half ago now, where a court held that using AI in connection with a text message is not the use of an artificial voice under the tcpa. So you can use AI to write those messages. Right. But texts are still generally considered the same as a call. So you want to have your consent if you're using an automatic telephone dialing system to do those texts, you know you want to have that prior express written consent and you still need to meet your do not call compliance obligations. So that means scrubbing against the federal do not call registry unless an exemption applies, which can be either an ebr, an established business relationship or written consent. So you still need to think about that in terms of texting. But texting is a little easier to, a little easier to pull off.

So if I want to go into my database and email everyone who has a certain SMS with AI, everyone who drives a certain vehicle as long as they've been in the last 18 months, generically, just depending on the state. That is generally okay with sms, right?

Generically. And obviously, you know, people got to make, maintain your data, make sure it's all good. You got to scrub against your own internal list as well. Now I will tell you the CTIA messaging principles and best practices, those are carrier rules, not laws, right? They're carrier rules. They would say you have to have consent in order to text in every instance.

Okay, now let's go back to what I think is the more serious part of this, is the disclosures and obligations you have to have on these. We have no idea about what percentage of people would opt out if the robot had had to disclaim that, even with consent. I've asked 50 dealers since we scheduled this. I got a low answer of 50%. I got a high answer of 80%. Do you have any idea?

I don't, I don't. I will tell you that we know that about 60 to 70% of phone numbers are on the national do not call registry. It wouldn't shock me if a similar percentage of consumers who get a robo, you know, an AI voice call opt out from those. It wouldn't shock me entirely. But yeah, those are crushing numbers.

And if they opt out in this call, they opt out of everything, right?

Correct. So it counts as a full do not call.

Yeah. So if you even have a 10% rate, which we know would be higher after a year, you've opted out an extreme large amount of your active database, right?

Yeah, yeah.

I mean compound that over a year, it's.

There's a real risk there.

Yeah, you mentioned the state level. Give some of the examples there because everyone, when Josh went over this with me.

So at the state level, every state regulates what are called ads, automatic dialing and announcing devices. And those are generally a device that dials automatically and then plays a pre recorded message or like an artificial voice. Right. Now these state rules, though, they vary widely. Sometimes they need consent, sometimes they have disclosure rules, sometimes they require that a human being introduce the message and then get permission to play the message. They can have registration requirements, calling time limitations, a whole mess of things that vary widely from state to state.

You know, this disappoints me to have this talk because we actually, with our campaign engine for volley, we were hoping to build this into the campaign engine. It is wholly impractical to do outbound AI voice.

Yeah. And there are also, you know, starting to pop up like Utah for example, and certain industries requires that the, the call say this is an AI or this is a virtual agent. Right. And disclose that right up front. It's going to be interesting to see how this, this progresses over time. I think right now consumers are not loving AI systems fully. Maybe as they get better we can see some regulatory changes.

And the general trend is not to get easier on robo Dialing is, is not.

Although I will tell you the the courts now, as a result of a Supreme Court case last month, have a little more latitude to reinterpret some things. We saw a couple weeks ago a court say that actually despite the FCC saying forever that text messages are equivalent to calls that they're not. Now I wouldn't go running off and doing anything in response to that. That was one court opinion. But like we could, we could start to see perhaps a little unraveling. Historically though, that's not been the trend.

Yeah guys, there's no one like Josh. There's no one like their firm. If, if, if any of our dealer customers have questions with this or in general with compliance, how do they reach you?

Yeah, so you can shoot me an email jstevens s t e v e n s@mslawgroup.com that's the easiest way. Or you can call our office. 614-939-9955. Our website is mslawgroup.com Anything I left.

Out or should we wrap it up today?

I mean, I think we can wrap it up there. You know, I would be remiss if I didn't give the normal disclaimer that I probably should have given at the start. But of course this is educational and everybody's circumstances differ. So definitely talk to an attorney before for acting on anything you heard here because your factual circumstances might necessitate a somewhat different response. But it's, it is outbound AI is really tough right now and it's, it's, it's not something I see a lot of folks using.

Yeah, well, the consent is really tough. The obligations when you do do it make it wholly impractical. So. All right, well, thanks, Josh. Appreciate it.

Anytime. Thanks for having me.

See ya. Campaign engine for volley. We were hoping to build this into the campaign engine. It is wholly impractical to do outbound AI voice.

Yeah. And there are also, you know, starting to pop up like Utah, for example, and certain industries requires that the, the call say this is an AI or this is a virtual agent. Right. And disclose that right up front. It's going to be interesting to see how this, this progresses over time. I think right now consumers are not loving AI systems fully. Maybe as they get better, we can see some regulatory changes and the general.

Trend is not to get easier on robo dialing is is not.

Although I will tell you the the courts now, as a result of a Supreme Court case last month, have a little more latitude to reinterpret some things. We saw a couple weeks ago. A court say that actually, despite the efficiency.