The FCC's recent clarification on AI-generated voice calls under the Telephone Consumer Protection Act of 1991 (TCPA) has sparked considerable discussion, particularly concerning its implications for recruitment practices. Before delving into the specifics, let's set the stage with some context.
The Federal Communications Commission (FCC), an independent U.S. government entity, plays a pivotal role in enforcing the nation's communication laws and regulations. A significant part of its mandate involves overseeing the TCPA, which, in essence, restricts unsolicited calls made using automated dialing systems or artificial voices without the recipient's express consent. The TCPA specifically states that “it shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States to make any call (other than a call made for emergency purposes or made with the prior express express consent of the called party) using any automated telephone dialing system of an artificial or prerecorded voice.
On February 8, 2024, the FCC made a decisive move to clarify that AI-generated voice calls (and voice cloned calls) indeed qualify as "artificial" within the TCPA's framework. This ruling did not introduce new regulations; rather, it provided a much-needed clarification, aligning AI voice technologies with existing TCPA stipulations.
When it comes to recruitment-related calls, the TCPA does not explicitly address them, nor does it carve out a specific exemption. However, judicial precedents, including notable cases like Reardon v. Uber Technologies, Inc. and Payton v. Kale Realty, LLC, have generally recognized that recruitment calls or texts do not constitute advertising or telemarketing under the TCPA. This interpretation effectively precludes such calls from the act's strictest consent requirements, provided they are made to candidates who have either applied for a position or voluntarily shared their contact information for job solicitation purposes.
Drawing from the latest FCC ruling and historical case law, the key takeaway for recruitment professionals is clear: while the TCPA applies to AI-driven recruitment efforts, these activities are not bound by the stringent consent mandates typically reserved for telemarketing calls. This distinction is crucial for maintaining compliance while leveraging AI technologies for candidate engagement.
To further ensure adherence to TCPA guidelines, we recommend two proactive steps for organizations using AI for recruiting purposes: first, explicitly inform potential candidates in job postings that they may be contacted through automated systems, including AI-generated voices. Second, avoid using purchased contact lists where consent for outreach from your organization may not be clearly established.
It’s essential to view our analysis as a starting point, as each organization may have different recruitment practices that are not covered under existing case law. For specific legal advice and to ensure full compliance with regulatory requirements, consulting with legal counsel and your organization's regulatory compliance team is advisable, and you should not rely upon our analysis as legal advice.
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