Yuck. To break it down: a cold call must do these things to violate clause (3):

(A) go to a residential line + (B) use an artificial or prerecorded voice + (C) deliver a message that:

• (1) includes or introduces an advertisement or
• (2) constitutes telemarketing

Let’s consider some ways a business could avoid running afoul of that rule.

Easy: Don’t call a “residential line”

• Don’t call phone numbers. Place calls to email addresses known or believed to be associated with free11 VOIP services like FaceTime Audio.
• Don’t call ‘residential lines’. The TCPA protects consumers. That does include personal cell phones, but excludes business and commercial lines.

Harder: Don’t “deliver a message”

Let’s say your AI agent begins a call with “Hi Mary, I’ll be honest, this is a cold call from [insert AI startup], could I have a few minutes of your time?” Is that a message? More broadly, is that call initiated to deliver a message?

Going off the plain language alone, you might say “sure.” From our perch in 2025, it’s easy to think of a call as a series of messages, or perhaps something that altogether “delivers a message.”

And it doesn’t help that today’s regulation has it both ways. In the first formulation—the prohibition at (3)—the message must encompass an ad or constitute telemarketing. In the second formulation—the safe harbor at (3)(iii)—the call must not encompass an ad or constitute telemarketing. Ugly! Since the regulatory text is a mess, it’s worth considering how courts and the FCC have applied the language to facts on the ground.

The “soundboard” cases address prerecorded messages, not live but artificial operators

The FCC and courts have not really addressed what constitutes a message, as opposed to a call. So we’ll turn to the plain language, and Congressional intent, in a minute. But here’s what legal cases have contributed to the question:

In its most relevant decision, the FCC commissioners fractured over whether calls comprised of prerecorded soundboard clips fell into the prohibition. In 2020, three commissioners — a majority of the five —found soundboard calls to require prior consent, even if selected or monitored by a human.12 The decision broke no new ground, and like all court and FCC discussions of the rule to date, addresses only “prerecorded” voice messages:

There is no doubt that soundboard technology “uses” a prerecorded voice to deliver a message to the consumer—the petitioners do not argue this point. We disagree that the TCPA’s use of the singular “message” in the phrase “to deliver a message” demonstrates that Congress did not intend the TCPA to restrict calls that involve multiple prerecorded or artificial voice messages as opposed to one uninterrupted message using such technologies. Calls that include multiple such messages by necessity include single message. …To find otherwise could lead to an absurd result, e.g., a caller playing two sound snippets back-to-back to avoid obtaining consumer consent. The absurdity there is semantic, since back-to-back prerecorded messages may just as well be a message. But, to avoiding conflicting with a 1995 Ninth Circuit decision13, the FCC limited its ruling to calls that begin with an artificial or prerecorded message, not those that begin with a “live operator”:

Our ruling, however, is limited to calls that are initiated using an artificial or prerecorded voice message that the record suggests is the common practice on calls using soundboard technology. [P]etitioners offer no such example of artificial or prerecorded messages having been introduced by a live operator on a call using soundboard technology before playing an artificial or prerecorded message. Apparently, it is not absurd that there’s no liability if a live operator says the “Hi Mary” piece and leaves the rest to a series of prerecorded message. Neither the Ninth Circuit nor the FCC confronted a call conducted by a live but artificial operator—nor, as far as I can tell, has any court since. So let’s do what the FCC hasn’t and consider what Congress meant by “deliver a message.”

The real meaning of a “message”

When Congress enacted the TCPA in 1991,14 the difference between a call and a message was more concrete. Messages had long been what they handed when you got back to the office. And there was a new DIY option: you could check your voicemail messages at home by rewinding a cassette tape that had recorded them (they called it an ‘answering machine’). At the time, artificial voices couldn’t conduct live calls; they could only deliver messages. Let’s review some of the floor debate:

Automatic dialing machines… have the capacity to call 20 million Americans during the course of a single day, with each individual machine delivering a prerecorded message to 1,000 homes. … The compromise bill makes it unlawful for any person to initiate any telephone call to any residence using an artificial or prerecorded voice to deliver a message.
The legislation makes two absolute exceptions to this prohibition: First, where there is the prior express consent of the called party; and second, where the call is initiated for emergency purposes, [like] any automated telephone call that notifies consumers of impending or current power outages.—Rep. Markey, Nov. 26, 1991

In other words, an automated message about a power outage required an exception to this rule. By contrast, a call from a live operator would not:

I regard…robotic calls by machines such as autodialers and computer-generated voices to be a much greater threat to the privacy of our homes than calls by live operators. At least you can vent your anger to a real person if they have interrupted your dinner. You can ask them questions and hold them accountable to some extent. At least a live person can only call one person at a time. Among calls placed by live operators, there are some that we may not mind so much. Some are even helpful.—Rep. Cooper, Nov. 26, 1991

Another sought to give the FCC rulemaking authority so it could exempt messaging services viewed as advancing consumer interests without harming consumer privacy. At the time, the hot new service MessagePhone could deliver “messages” on your behalf if the line you needed to reach was busy:

Take for instance the scenario where you are at an airport, you missed your flight and only have a few minutes to call your spouse with the updated flight information. The line is busy and you have to leave. With my constituent’s service, you could record a message; they would attempt to deliver a few minutes later, even if you were completely removed from a telephone…MessagePhone designed the service to give the calling party an alternative to busy and unanswered telephone calls which make up 30 percent of all telephone calls.—Rep. Bryant, describing the need to exempt MessagePhone

Congress wasn’t just talking about messages: the distinction between calls and messages was written into the TCPA and remains papered throughout the regulations today. Look at clause (2), which sits above clause (3). It applies to a narrower set of recipients, and excludes the “deliver a message” proviso:

(2) Initiate, or cause to be initiated, any telephone call that includes or introduces an advertisement or constitutes telemarketing, using an automatic telephone dialing system or an artificial or prerecorded voice, to any of the lines or telephone numbers described in paragraphs (a)(1)(i) through (iii) of this section, other than a call made with the prior express written consent of the called party…

That means “deliver a message” in clause (3) must have meaning, whether anyone wants it to or not. What does it mean? Forget Congressional intent—just consult a dictionary:

**message** | ˈmesij 1 a verbal, written, or recorded communication sent to or left for a recipient who cannot be contacted directly: *if I'm not there, leave a message on the voice mail.* *US English* an official or formal communication, especially a speech delivered by a head of state to a legislative assembly or the public: *the president's message to Congress.* an email or similar electronic communication: *select an option to delete your mail messages.* an electronic communication generated automatically by a computer program and displayed on a screen: *an error message.* a divinely inspired communication from a prophet or preacher: *Jesus and his followers were promulgating a specifically Judaic message for Judaic adherents.* *US English* a television or radio commercial: *we will return after these messages.*

In each case, (1) the act of saying, writing or recording a communication precedes (2) the delivery or transmission of the communication to the recipient. (Lest we forget, that remains true of most voicemail: “If you are satisfied with your message, please press pound to confirm or 1 to rerecord.”) That is what makes something a message. When the act is simultaneous with its delivery, it’s not a message. It’s a conversation. And when it’s on the phone, it’s a call.

And the FCC now has separate rules now specify exactly what “artificial and prerecorded voice telephone messages” must say.15 That long list supplies further context demonstrating that a message is canned or scripted, not an open-ended dialogue or conversation. The FCC’s soundboard case built its conclusion that “the record confirms that soundboard callers use a prerecorded voice to deliver a message” along just those lines:

• “Based on consumer complaints and press reports,” the soundboard dialogues did not “represent a normal, continuous, two-way conversation” because, among other things, the recordings do not always respond to consumer questions and the call is terminated in response to such questions.
• “the record indicates that soundboard agents routinely monitor multiple telephone calls simultaneously while rarely, if ever, speaking on these calls, and that the prerecorded messages they use are sometimes nonsensical to the consumer.”

A call with an AI agent need not begin with, nor ever include, a message. It wouldn’t involve a prerecorded voice, either. The point of using an AI agent would be to facilitate an unscripted, responsive dialogue—just the kind a human caller would conduct.

Forget it: a cold call’s going to involve ads or “telemarketing”

Even if an AI agent “delivers a message,” that’s not the end of the story. But the last escape hatch from the consent requirement is fraught with subjectivity, and is a shakier basis for avoiding TCPA liability than the other options. Today’s clause (3) ends with carve-out from the prior-consent requirement for several kinds of calls using artificial or prerecorded voices, as long as they aren’t telemarketing and lack ads. The carve-out mirrors everything from the prohibition—the carved-out calls still deliver a message—the difference is only whether the call includes an ad or constitutes telemarketing. And those calls can be commercial in nature—that’s (3)(iii).

So, it must be true that some commercial cold calls using artificial voices deliver messages but don’t require prior consent: the ones that don’t include ads or constitute telemarketing.16

That’s MessagePhone delivering the audio clip your spouse recorded before the flight took off. Or your pharmacy’s robotic voice saying your prescription’s ready. The AI cold calls the questioner’s talking about will eventually alight on a sales pitch. Assuming the call is found to have begun with a message, there’s the telemarketing, and that’s the ballgame.

Future proofing

Will this change? It’s not clear to me why AI agents would be more annoying or bothersome than human callers, except in so far as AI calls would be cheaper to make. AI agents will probably pantomime sympathy and speak more clearly than the average call-center worker (for whom English is often a second language). And most human agents already follow a deterministic script—you can easily imagine a generative system that cuts through a lot of that routine noise. But, as uptake of AI rises in telemarketing, we may see a spike in the sheer number of unsolicited calls, as we have with unsolicited text messages.17 That deluge may prove to be such an annoyance that future regulations address this fact pattern more specifically. But right now, none have been proposed. Follow the TCPA rules that do exist for all unsolicited calls — get the National Do-Not-Call list, set up your business’ own do-not-call list and policy, ensure your agents identify themselves and can add anyone who opts out, track your calls, etc. — and you’ll be fine.