EIA Leads Opposition to FCC's AI-Generated Text Messaging Proposal
The Ecommerce Innovation Alliance (EIA) has been a vocal critic of the Federal Communications Commission's (FCC) proposed rulemaking concerning "AI-generated calls," which would impose new consent requirements for ecommerce companies using AI to improve the text messages they send to their subscribers. In its Reply Comments, filed with the FCC last week, EIA reiterated its stance, arguing that the proposed definition is overly broad, lacks a legal basis for regulating text message marketing, and risks stifling innovation within the ecommerce industry.
Overly Broad Definition
EIA contends that the FCC's proposed definition of "AI-generated calls" is so broad that it would encompass not only novel generative AI tools but also well-established technologies used by businesses for over a decade. This, they argue, will make it challenging for consumers to differentiate between new AI applications and existing technology, ultimately rendering the disclosure requirement meaningless.
Echoing this concern, ACA Connects, a trade association representing communications companies, points out that the FCC's definition is so expansive that it might capture tools used for routine tasks like scheduling or targeted advertising, which have been in use long before AI became prominent.
Lack of Legal Basis
EIA asserts that the FCC lacks the legal authority to regulate AI's use in generating content for marketing text messages. The Reply Comments emphasize that the FCC’s authority to impose technical requirements focuses specifically on "voice" communications and the Commission should seek Congressional input before expanding the TCPA to regulate AI technologies.
The Insurance Marketing Coalition supports this position, arguing that the TCPA's focus on regulating automated or prerecorded voices doesn't grant the FCC the power to impose new disclosure requirements on AI-generated text messages. They underscore that the word "voice" in the TCPA is clearly intended to refer to audible sounds and not written text.
Stifling Innovation
A central argument in EIA's reply comments is that the FCC's proposed regulations risk inhibiting innovation in the ecommerce industry. They argue that brands and technology providers are just beginning to explore the potential of generative AI in enhancing personalization and improving the consumer experience with text message marketing. The EIA is concerned that imposing new rules at this nascent stage could disrupt this progress.
No Retroactive Application
EIA argues that, should the FCC proceed with adopting the proposed rules, it is important to protect businesses that have invested significant resources to lawfully collect subscribers for their SMS marketing lists. Accordingly, the FCC should apply any new disclosure requirements only on a prospective basis. No commenters argued against this position.
Positions Supported By Other Stakeholders
The EIA's position finds resonance among other industry stakeholders. Notably, several groups share the EIA's concerns about the broad definition of "AI-generated calls." Example of other comments filed in the docket, include:
CTIA, a wireless industry association, warns that broad definitions could lead to overly burdensome regulations that would ultimately harm consumers.
The U.S. Chamber of Commerce, echoing the EIA's point about stifling innovation, urges the FCC to consider the potential impact on main street businesses.
NTCA, an association representing rural broadband providers, highlights that AI could enable providers to communicate with customers more efficiently and cost-effectively, but fears that new AI-specific consent requirements would be burdensome and confusing.
USTelecom, a broadband industry association, supports focusing regulations on AI-generated calls that are intended to harm consumers, rather than casting a wide net that captures legitimate communications.
The National Automobile Dealers Association emphasizes the potential compliance burdens and costs that businesses would face.
Attentive Mobile, making its first appearance in an FCC rulemaking, filed comments that closely follow the arguments presented by EIA in its opening comments.
Conclusion
EIA's reply comments, along with those of other stakeholders, underscore a significant pushback against the FCC's proposed approach to regulating AI-generated calls and text messages. The central concerns revolve around the expansive definition, lack of clear legal authority concerning text messages, and the potential to hinder innovation in a rapidly evolving technological landscape. Given the outcome of the elections earlier this month, these arguments raise important questions about the appropriate scope and timing of regulations in this area.
