In this Who Got Whacked & Why feature we focus commentary on the first-time FCC prohibition of artificial intelligence over a communication network. The question remains, will there be more?

The matter involves Lingo Telecom, LLC, (Lingo) a provider that has been in the market over several reiterations and mergers and provides an array of services within Interconnected VoIP and Unified Managed Communication service lines.  It also involves Lingo’s customer, Life Corporation (Life) a company in a series of tech and communication startups commonly owed, and with historical services in text messaging for political surveys and fundraising campaigns.

This past week the FCC sent a Cease-and-Desist Demand (C&D) to Lingo concerning Artificial Intelligence (A.I.) voice simulated prerecorded Political robocalls Life had sent to New Hampshire telephone subscribers (voters) shortly before that state Democratic Primary Election this past January.  Here’s where the matter gets “sexy-as-it-gets” and a digital law powder keg.  The voice A.I. simulated was President Joe Biden and the message conveyed encourages otherwise qualified voters to not bother.  Typically, something like this would easily fall under traditional prohibitions TCPA and TRACED Act provisions of the Federal Communication Act, but this is not a typical case. 

The FCC (the Commish”) was still undergoing rulemaking for the specific area of robocalls and use A.I. voice simulations.  There was good cause for beginning such an inquiry. Many things get grouped into A.I. which are not A.I., and A.I. is a technology that is presently readily accessible to the public and largely unregulated.  Government is still trying to figure out the proper regulatory approach and numerous agencies are vying for primary jurisdiction when it relates to consumer interests.

 Then came January 21, 2024, which involved widespread robocalls seemingly using such technology.  Shortly after giving Lingo its C&D, a separate FCC Order is issued prohibiting A.I. generated voice simulations in robocalls and ruled these such messages are “Prerecorded Messages” for purposes of the TCPA and TRACED Act provisions applicable to communications providers.   And Wahla, the FCC is the first agency to regulate A.I. under a robocall prohibition.  There is much to be learned by the matter of Lingo and much to unpack to be useful to a Digital Jurist – so let’s get going.

Specific FCC Actions:  

• FCC issues Cease and Desist Letter with Robocall K-4 Warnings to Lingo and posted a Public Notice to all U.S. providers of the C&D terms and potential for K-4 Notice if Lingo fails to comply with the Commish’s requirements.
• FCC issues Declaratory Ruling on A.I.  generated voices used in Robocalls within scope of TCPA under November 16, 2023, Notice of Inquiry for Implications of Artificial Intelligence Technologies on Protecting Consumers from Unwanted Robocalls and Robotexts, CG Docket No. 23-362, Notice of Inquiry, FCC 23-101 (rel. Nov. 16, 2023) (AI NOI).

Potential Implications for the Parties: 

• FCC: Lingo Telecom, LLC (potentially including activity under other operative trade names Americatel, BullsEyeComm, Clear Choice Communications, Excel Telecommunications, Impact Telecom, Lingo, Lingo Communications, Matrix Business Technologies, Startec Global Communications, Trinsic Communications, and VarTec Telecom). Lingo has been given a limited period of time by the FCC to tighten up its network related to robocalls generally.  Failure to comply can result in a K-4 Notice from the Commish which would result in a 48-hour clock for U.S. providers to migrate away from the company’s network or face similar consequences in enforcement action.
• New Hampshire Office of Attorney General (NHPAG): Lingo Telecom could potentially see involvement in a NHPAG civil lawsuit under state consumer protection as it had an intimate provider relation with Life as its originating provider. There are also some facts stated in the FCC record that Lingo had knowledge of Life’s activities before the event and Lingo warned them to stop over legal and regulatory concerns but did not suspend services.  The NHOAG has been deeply involved in the investigation of this matter and appears to have already subpoenaed the Industry Traceback Group for records.
• FCC:  Life Corporation seems to have a similar C&D queued from the FCC.  The Commish has jurisdiction over “users” of communications networks. Any such C&D to Life will differ from Lingo in that the demand would to it as a “person” and end-user of the communication services through Lingo. Additionally, Life was issued a 2003 Citation from the FCC concerning illegal prerecorded and unsolicited advertisements to residential lines. The Commish may forego the C&D and could potentially issue a NAL.
• DOJ Civil Division: Life Corporation could additionally see future allegations of election interference under federal election laws, however, there appear that there are some mitigating facts in this instance particular to the New Hampshire Democratic Primary that may separate such interference from recognized interference with balloted candidates on a state’s voting ballot.
• New Hampshire Office of Attorney General (NHPAG): Life Corporation could likely see a civil action from NHOAG as investigative activity concerning Lingo was to identify and collect information on Life and its calls.
• Private TCPA Class Action Plaintiffs: In the realm of possibilities, a private class action for TCPA violations could arise against Life and Lingo. The precursor elements for that are present. The FCC has determined that calls comprise “pre-recorded messages,” the traffic was determined to be illegal, and the Commish determined that Lingo originated the calls for Life who made the calls.  Whether a class action is initiated by TCPA Plaintiff Bar may be a matter of economics – how recoverable civil damages would be against either Lingo or Life based on their financial wherewithal.  No money, no honey (for Plaintiff class attorneys), so to speak.

FCC Release Dates:     Feb. 6 to 8, 2024.

FCC File/Action No.: 

FCC Cease & Desist Letter K-4 Warning to Lingo [Feb. 6, 2024]

C&D Public Notice to other Providers [Feb. 6, 2024]

CG Docket No. 23-362  [Feb. 8, 2024]

Enforcement Result: Use of A.I. generated voice within robocall or similar technology and software systems are deemed “prerecorded messages” for purpose of the TCPA.  Voice Service Providers that enable customers to send such A.I. “prerecorded messages” and are intimately aware of this type of message may now face TCPA Liability under TRACED Act provisions and enforcement.

Impact on Law: FCC Interpretation adjusts  meaning of Sections 1-4, and 227 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151-154, 227, sections 1.2 and 64.1200 of the Commission’s rules, 47 CFR §§ 1.2 and 64.1200 as related to “A.I. generated voices” used in calls under TCPA and TRACED Act provisions.

Rundown on Triggering Events:  On January 21, 2024, two days before the New Hampshire Presidential Primary Election, state residents received calls that played allegedly played a prerecorded message from a voice that was artificially created and simulated President Joe Biden’s voice and mannerism in using the expression “bunch of Malarkey.”  The Caller ID on the prerecorded call was spoofed to appear as the telephone number of  the spouse of Kathy Sullivan, a former New Hampshire Democratic Party chair who runs a Super PAC pushing for New Hampshire Democrats to write-in President Biden’s name in the state’s primary election.  The pre-recorded message encouraged potential Democrat voters to “save your vote for the November election,” and refrain from primary voting. So, the call did expressly convey a do not vote message to otherwise qualified and registered voters and the public.  The opt-out telephone number used then stated Ms. Sullivan’s personal cell. (I can only image how that phone blew up.) The calls were reported to New Hampshire Democratic Party, Ms. Sulivan (obviously because of opt out number), and the PAC and media coverage ensued – a lot of media coverage.

The investigation – from FCC Record

The New Hampshire Attorney General, a member of the FCC’s (MOA) Anti-Robocall Multistate Litigation Task Force who share information with the FCC, apparently then began investigation alerted the Commish and forwarded information gathered and known about the calls.  U.S. Telecom’s Industry Traceback Group (ITG) was then subpoenaed and initiated Traceback Request targeting the call among terminating and intermediate providers, who routed the call and completed the call, in search of the originating provider.  ITG Tracebacks from providers  identified Lingo as the originating provider and in turn Lingo identified Life as the party initiating and making the calls at issue.

In communications with the ITG, Lingo did not contest the illegality of the of Life Corporation’s calls and purported to have warned Life about the calls.  Whether this was before or after January 21, 2024 is not clear from the record released by the FCC. The statements seem to have been between the ITG and Lingo and found in ITG subpoena responses. Life appears to have been issued an FCC C&D as well, although not yet posted on the FCC’s public record. Additionally, it has been reported in the media that the ownership of Life is connected to another communications company – Wholesale Communications. At the present time, it is unclear if Wholesale Communications was involved or if Life is being determined by the Commish as an alter ego for it. However, it has been further reported in the media that Life may be connected to a text messaging service/technology branded as Text2Survey that has performed political surveys and fundraising via text messages.

Troublesome for Lingo in the midst of this are some past run-ins in ongoing efforts of the FCC, the FTC, and the MOA alliance of Anti-Robocall Multistate Litigation Task Force  against suspected robocall traffic.  This is specifically denoted in the C&D and the FCC’s Public Notice on the C&D. “Since 2021, the ITG has identified Lingo as the gateway provider responsible for 61 suspected illegal calls originating overseas that entered the United States,” the FCC cites.  See, FCC Cease & Desist Letter to Lingo, pg. 3.  In August of 2022, the Anti-Robocall Multistate Litigation Task Force issued Lingo a Civil Investigative Demand to identify, investigate, and mitigate suspected illegal call traffic transmitting from its network. Id. In November of 2023, an additional demand was made on Lingo by the Task Force alleging that it “continued to transmit suspected illegal traffic” and to better protect its network.  In August of 2022, the FTC issued Matrix Telecom, LLC, which was Lingo’s prior corporate name, a Cease and Desist that identified numerous illegal calls that the company was apparently transmitting.  So, it appears that a number of other types of warnings have been given to Lingo, prior to the current warning by the FCC under the TCPA and TRACED Act.

A.I. and Robocalls

As for A.I. and robocalls, the FCC, the FTC,  the Anti-Robocall Multistate Litigation Task Force  have not specifically addressed the issue prior to this event – particularly in an enforcement action scenario. Likewise, historical efforts by these agencies to date have focused on “traditional” fraudulent robocall scams and others violating TCPA marketing laws and rules.  Most past efforts centered on robocalls from abroad through gateways passing the calls into the U.S. PSTN network.  Prerecorded messages to have embodied a loin share of the suspected calls because off-the-shelf anti-robocall mobile apps record and transcribe the prerecorded messages sent as low hanging fruit of the corpus delicti.  None to date have prohibited the use of A.I. over a communication network.  Mainstream criticism in support of  regulation and prohibitions over A.I. applications have been directed at the A.I. providers, not so much the end-users or access to the public. This matter is the first time the two have been merged in not only a warning of violation potential, but also a fast -track determination of what is included as a prerecorded call from a technological standpoint.

Many things still unclear.

As events have been unfolding over a relatively short period of time, exactly how the FCC concluded that the suspected robocalls involved A.I. and not some other technology is still unclear. The C&D as well as public releases by the FCC simply state that A.I. was used.  What A.I. software, code or database is still unknown.  Although the FCC record is silent ,the Enforcement Bureau may be holding information or statements from the parties of a more conclusive nature.  This would be a logical move by the EB. Ever since the Super Bowl “Nipplegate” enforcement action (an FCC enforcement action that went up and down the gambit of federal appeals only to end in the courts undoing the FCC’s action and overruling its position on the matter), the Commish has been keenly cautious on making determinations without well footed support. Most important in that is whether there was “fair notice” to the regulated entity of the rule that was to be enforced. In this case, the determination that A.I. used in robocalls is prohibited came two days after the warning letter to provider Lingo. 

Interestingly enough from the relevant media reports, President Biden actually won the New Hampshire Democratic Primary as a write-in candidate. This was of electoral importance because he declined to complete on the ballot in the Primary due to the state violating the Democratic National Committee’s Primary schedule, making North Carolina the start-off state for the process. Ergo, the write-in process was more a benchmark of Hampshirite  voter sentiment than electoral voice of the people.  This is not to say that the robocalls may not have been an act or attempt of voter suppression or violated election laws. However, the events occurred within a circumstance that was not balloted primary candidate that has clear implications of voter suppression. These facts may become relevant as far as further government action or litigation against the warned parties.

Industry Concerned/Impacted: 

• TCPA defined Calling Parties (whether for political purposes or otherwise telemarketing or mobile marketing) who use A.I. in prerecorded voice messages or imbedded in text messages;
• Interconnected VoIP (I-VoIP) providers including unified communication platforms and IP-PBX services;
• Local phone providers and originating phone providers that bundle text and prerecorded voice message functionality for their customers in there service or as software as a service (SaaS);
• Political Campaigns & Political Marketing Companies (who must be certain to obtain expressed written consent by e-sign or signatures under the TCPA);

Preliminary Review – What’s at Issue & Why:

Before delving into the intricacies and nuances of this matter and what can be learned, I want to be clear that political  partisanship has no place and what we do as digital jurists. Our labors should focus on the U.S. Constitution, the Bill of Rights, laws enacted by Congress, Rules set by agencies and how the courts should apply them within the context of cyberlaw and digital innovations.  Today’s case involves one political party, the next time it’s the other, or even worse both. Important above partisanship is the average citizen’s right to vote for which many have suffered and paid the ultimate price to ensure  it. It’s not a topic to be sloughed-off over partisanship. Other blogs can do that, but not this one.  So, let’s unpack.

Fascinating to the issues involved here is one inherent to any technology, that  tech innovation happens faster than regulation – or better said on-target regulation over the use of the technology.  A month ago, the FCC was merely investigating how it should approach A.I. and robocalls from a more formal rulemaking perspective. See, November 16, 2023, FCC Notice of Inquiry for Implications of Artificial Intelligence Technologies on Protecting Consumers from Unwanted Robocalls and Robotexts, CG Docket No. 23-362, Notice of Inquiry, FCC 23-101 (rel. Nov. 16, 2023) (AI NOI). Clear lines had not been drawn out in the books for specific “Fair Notice” to persons or providers coupled with the technology. Nonetheless, traditional court and FCC definitions and interpretations under the TCPA seemed to place A.I. generated voice recorded messages in the same broad arena of traditional prerecorded voice message definition. On-point treatment for nuances and what fundamentally comprises A.I. as applied to calls had yet to be articulated.  Therefore, the Federal Comm Act generally governed it, but court interpretation could have impacted it.  Full process rulemaking, with federal Administrative Procedure Act Protections would have provided this commonsense conclusion with the force of law and Fair Notice for enforcement purposes.

But that didn’t quite happen here. The Commish in response to pressure from the New Hampshire controversy exercised its administrative muscle under a Declaratory Order – or Ruling, not Rule.  While substantially similar to a fully promulgated Rule, it stands as an interpretation that could be later overwritten by a duly promulgated Rule or by the courts.  My impression is that the Commish will complete its formal rulemaking process in the AI NOI, referencing this Order, in due course to give final and undeniable fair notice to all.  Should the NHOAG or the DOJ venture a lawsuit against Lingo or Life, these issues could arise. It’s one of the issues that always arises when law and regulation is catching up to technological innovations.

Comes Now January 21, 2024 and Lingo C&D with K-4 Warnings.

Now let’s drill down on what happened with Lingo’s C&D.  Amongst all the election hoopla, the FCC approached Lingo along the lines of a typical TRACED Act enforcement of illegal robocalls.  Under Section II of the letter, the Commish clearly expressed that the call traffic in question were clearly illegal as robocalls, Lingo originated it for Life as its voice service provider under the Act, AND “It is unlawful to “knowingly transmit misleading or inaccurate caller identification information with the intent to defraud, cause harm, or wrongfully obtain anything of value” under 47 U.S.C. § 227(e)(1) and 47 CFR § 64.1604(a) [Emphasis Added.]  Seemingly, the Commission was poised to make an administrative determination as predicate to NAL (Notice of Apparent Liability) and levy a fine.  This is possible against providers for robocall violation of the TRACED Act without the need to first issue a formal Citation (formal first-time warning) before imposing penalty.  Yet it didn’t.  It held back full TRACED Act enforcement action, or NAL, and instead chose the C&D letter. Why then?

Now I’ve had extensive dealings with the attorney advisors at the FCC Enforcement Bureau (EB) in enforcement actions for years, and I must say these folks are solid legal professionals with keen understanding of administrative law and the Federal Comm Act.  It seems that the folks over at the EB were fully cognizant of the “fair notice” issue involved with Lingo, and that a definitive ruling prohibiting the activity didn’t exist – but was forthcoming. Two days later the Commission released a declaratory order that not only clarified but gave bright lined for providers originating prerecorded A.I. generated voice traffic and the “persons” that send them.  

“…we confirm that the TCPA’s restrictions on the use of “artificial or prerecorded voice” encompass current AI technologies that generate human voices. As a result, calls that use such technologies fall under the TCPA and the Commission’s implementing rules, and therefore require the prior express consent of the called party to initiate such calls absent an emergency purpose or exemption.”

Therein, the FCC affirmatively concludes that any the call comprising an A.I. generated voice is “using” a “prerecorded voice” within the meaning of the TCPA.  

Timing and immediacy of the election year seemed to have played a factor with the Commish for quick response.  Most assuredly, there was enormous pressure on the Commission and its Chairwoman to act in some enforcement manner to stop further possible A.I. simulated robocalls in other states who are on the cusp of Primaries. Lingo also appears to have admitted (by LOI Response to the EB or to ITG in Tracebacks) that it suspended  Life’s services prior to Feb. 6, 2024.  The result is that the C&D letter contains strong and undeniable FCC K-4 Notice warning conditions for Lingo.  

For those of you not familiar with a K-4 Notice, it refers to a part of TRACED Act provisions.  Pursuant to 47 CFR § 64.1200(k)(4), the Commission may order ALL U.S.-based voice service providers may block ALL call traffic transmitting to or from a U.S. voice service provider found violating TRACED Act provisions of the TCPA for transmitting illegal robocalls.  Ergo, a K-4 Notice is notice under the Commission’s Rules of such a finding AND that Order to all U.S.-based voice service providers (VSP). Implications of a K-4 Notice is that the VSP is removed from the FCC’s Robocall Mitigation Database so that no STIR/SHAKEN Tokens can be authenticated and may be blocked so the offender’s traffic cannot bypass the order.  And, the K-4 Notice is usually the precursor to a NAL where the offender is fined under civil administrative penalties.  Let’s just say, its serious for a U.S. VSP.

A Cease and Desist with K-4 Warnings differs in that it’s much like a traditional FCC Citation, but with much more bite.  Specific compliance deadlines are given and will be stringently enforced by the FCC.  If the VSP fails to comply completely, the K-4 Notice goes out. The C&D issued Lingo contained these strong terms, so provided they comply fully, they have the ability to avoid that painful route.  The impact of an FCC C&D Letter with K-4 Warnings extends beyond just the FCC.  Other VSPs cannot rely on the C&D subject complying timely, or completely to the satisfaction of the Commish, and will begin the process of migrating traffic away from that subject VSP  to not have operational issues in call completion on its end. Needless to say, the EB also issued a Public Notice to the industry that it issued a C&D Letter to Lingo.

So, for the moment, the fate of Lingo and any potential FCC K-4 Notice is entirely in the hands of Lingo. Hopefully Lingo will shore things up quickly for the benefit of all.  The FCC however took no great pain in citing how other agencies have them in the spotlight for prior robocalls.  So, Lingo is definitely in the crosshairs beyond matters in New Hampshire.

Likewise, Lingo may not be entirely out of the legal woods, even if it complies fully with the FCC’s demands. Something interesting in Section II of Lingo’s C&D May actually open Lingo to an action by the New Hampshire Office of Attorney General. Under Section II, the FCC makes two (2) determinations under TREACED Act Provisions of the TCPA.  One, it determines that the traffic in question was in fact illegal robocalls under TRACED Act Provisions. Two, it determines that Lingo was the originating provider of illegal robocalls and robocall traffic.  Those two findings may be enough legal standing for the New Hampshire Attorney General to initiate a civil lawsuit under its unfair trade practices act (UFTPA) for the violation of a federal statute or regulation that harmed consumers and residents in its state.  Similar state attorney general actions against intermediate providers for illegal robocall traffic have typically based their cases on purely ITG Tracebacks and analytical data, absent any FCC determination.  Here, the FCC’s C&D and  Public Notice clearly states that the EB  has made a determination as to the illegality of the calls and Lingo being the originating provider of those calls.  Legal standing is queued up for a UFTPA claim by the NHOAG.  The legal team at Lingo would be wise to keep an eye on that after they shore up any loose ends with compliance demanded by the FCC in the C&D. 

What about Life?

Life Has been mentioned very little in formal proceedings and much more in the media when it comes to the New Hampshire event.  In its Public Notice on the Lingo C&D, the Commish references a prior FCC Citation issued against Life for apparently illegal prerecorded and unsolicited advertisements to residential lines in 2003.  Public Notice Pg. 5 FN 32: “FCC Citation from Kurt Schroeder, Deputy Chief, Enforcement Bureau, to Life Corporation (July 29, 2003).”  That prior FCC Citation con be argued “Fair Notice” and sufficient FCC NAL purposes.

This all broods eerily for Life because it was the maker of the calls in question.  It was the one who apparently Spoofed the telephone numbers on the calls.  It also was involved in the content of the A.I. generated prerecorded message, giving Ms. Sullivan’s personal cell as the opt-out number to call.  It also appears that Life is involved in technology solutions for political marketing.  I sense that we will hear more about Life from the Commish in the coming weeks.  I also sense that with that we will learn more details on the A.I. used that is germane to the FCC’s Declaratory Ruling. I also sense that any enforcement action against Life will have a broader future implication for mobile marketers.

Takeaways & things to watch

From my perspective, as a Digital Jurist with a telecom background, I find the predicament of Lingo quite lamentable, and honestly avoidable.  As the originating provider, Lingo was privy to information about its customer (Life)  more than any provider in the call chain.  It also apparently had a degree of knowledge of Life’s robocalls not being congruent with the TCPA.  It kind of brings you back to the old adage of: if you see something – do something – particularly if you are on the front line of the suspect calls or conduct.  The FCC is approaching Lingo from a traditional TCPA robocall enforcement stance under TRACED Act provisions.  Compliance is therefore key defense and avoidance.

FCC robocall mitigation rules are relatively defined compared to 2020-2022 when they slowly rolled out.  ITG Traceback response, Know Your Client protocols, STIR SHAKEN authentication, and being able to suspend or terminate a client for excessive robocall issues are key to avoiding issues of the kind Lingo is now facing.  Much of the government’s attention has been placed at the intermediate carrier level to date, but Lingo demonstrates that local and I-VoIP providers are equally responsible for proper mitigation. Hopefully, Lingo has sufficient time under the FCC’s C&D to rectify past mitigation problems. If this is not feasible, I imagine their attorneys will request extensions or if necessary begin the process of consent decree negotiations with the Enforcement Bureau. Being compliant is essential to resolving Lingo’s FCC issues.  For all other implications to Lingo from to New Hampshire event, we’ll just have to watch in the coming weeks.

Life is a different situation. I sense we may see an FCC enforcement action against them fairly soon. I would not be surprised to hear of Life and Lingo involved in a suit brought on by the NHOAG or the DOJ for the election interference allegations.  Where else it could go from there is speculative. However, this case was high profile and could take several different avenues of legal impact depending on how things shake out. I’m sure their attorneys are working on damage control right now.

The more interesting aspect of this matter is the FCC Declaratory Order on A.I.  While the specific Order concerns just robocalls, its sets precedence with the Commish on the subject matter as related to digital and communication networks.  Things like that tend to not ratchet down but ratchet up, and often serve as legal gap fillers when no other agency is directly authorized by Congress to set rules over the technology.  I had imagined that an A.I. application like Chat GPT would be the first to see a prohibition or a regulation on it.  It will be interesting to see if the FCC takes the ball and runs with it further with regard to A.I. and communication networks like the Internet.  Recently, the FCC brought up the possibility of reintroducing Net Neutrality again.   I would not be surprised to hear the term A.I. in future rulemaking or comments from the Commish.  This aspect should be followed.

Final Thoughts

I look forward to the comments and feedback from digital jurists, attorneys, and legal legals out there on this compliance spotlight.  Commentaries are based on information available from releases of the FCC that are publicly available and general media reports on the New Hampshire event. Not all information related to these matters has been released by all agencies involved, so facts are subject to change. Commentary in this feature is solely for the information and education of attorneys who may face similar events with their clients. This author has no bias toward any party involved or the ultimate outcome of this matter.  Alert me to any developments in this matter so that this feature can be updated.