EIA Engages with FCC on Key Issues Regarding AI
The Ecommerce Innovation Alliance (EIA) is committed to fostering a regulatory environment that encourages innovation and growth within the ecommerce sector, while protecting consumers. As part of this commitment, the EIA recently participated in two meetings with the Federal Communications Commission (FCC) to discuss proposed rules that could require ecommerce companies to gain new consent from existing subscribers to continue to use AI tools to send marketing SMS or use AI-generated voices. EIA has led the industry’s opposition to the proposed rules, filing Comments and Reply Comments in the docket the past few months.
Protecting Consumer Choice and Personalization in SMS Marketing
On December 5, 2024, the EIA, represented by Elliot Ginsburg, Chair, and David Carter, President & CEO, met with Edyael Casaperalta, Legal Advisor to Commissioner Gomez, Hannah Lepow, Legal Advisor to Commissioner Stark, and several members of the Consumer & Governmental Relations Bureau. On December 12, 2024, David Carter held virtual meetings with Ramesh Nagarajan, Chief Legal Advisor to Chairwoman Rosenworcel, and Michael Sweeney, Commissioner Simington’s Policy Advisor. The purpose of the meetings was to discuss how the Commission’s proposal to use the Telephone Consumer Protection Act (TCPA) to impose new affirmative consent requirements for the use of AI was unlikely to protect consumers, but would have a negative impact on ecommerce companies, particularly small and mid-size businesses who have already built consent-based subscriber lists.
Advocating for Effective Use of AI in Ecommerce
The EIA believes that AI has the potential to revolutionize the way businesses connect with customers. AI-powered tools can personalize communication, enhance customer experiences, and ultimately drive sales. The EIA's comments advocate for a framework that fosters responsible development and deployment of AI in SMS marketing.
We discussed EIA’s concerns that the Commission’s proposed definition if “AI-Generated Call” is so broad that it would arguably encompass a broad array of technology that has been in use in the ecommerce industry for an years and that it would be difficult for a court to effectively apply the definition in practice. Therefore, the new rules would effectively require businesses to obtain new affirmative consent to use AI when sending text messages to existing subscribers.
The vague definition also has the potential to be exploited by serial plaintiffs, putting small businesses nationwide in jeopardy of more litigation under the TCPA. We also discussed how requiring new consent for use of AI-voices would likely produce costly litigation where businesses that use an “artificial voice,” without also getting AI consent, are sued and then forced to engage expensive technical experts to argue about whether any particular technology constitutes AI.
EIA advocated that, if the Commission moves forward with the proposed rules, it would be critical to ecommerce companies for the FCC to grandfather existing consent in order to avoid requiring these businesses to invest time and resources to get new consent from their existing subscriber lists.
Moving Forward
The EIA remains committed to working with the FCC to develop regulations that promote both innovation and consumer protection within the ecommerce ecosystem. We will continue to monitor the FCC's proceedings and provide updates to our members and the broader ecommerce community.
