On September 13, 2019, Florida-based company Yodel Technologies LLC (“Yodel”) petitioned the Federal Communications Commission (“FCC”) for a declaratory ruling concerning the use of soundboard technology. Specifically, the petition addresses the question of whether soundboard technology should be considered a pre-recorded voice message, or “robocall,” within the meaning of the Telephone Consumer Protection Act (“TCPA”). This petition comes on the heels of a similar petition submitted in February 2019, by NorthStar Alarm Services, LLC in which they sought a declaratory ruling regarding whether soundboard technology violates the TCPA. As of this date, that petition still remains pending.
Is use of soundboard technology prohibited by the TCPA?
Features of Soundboard Technology
Soundboard, or avatar, technology is used by telemarketers to provide a more interactive experience (as compared to entirely pre-recorded calls) for their call recipients. When a telemarketer places a call using soundboard, the telemarketer is present for the entirety of the call. As compared to a completely pre-recorded call, soundboard technology enables telemarketers to respond to call recipients in real time by playing one or more pre-recorded responses. In using this application, while a live person decides how to respond to called party inquiries, the responses themselves are selected from a menu of options. If need be, the telemarketer can also intervene during any given call by speaking directly with the call recipient. The use of soundboard technology allows for greater levels of interactivity with the call recipient than does pre-recorded calls and minimizes any comprehension issues stemming from live agent accents or speech impediments. Additionally, soundboard technology enables companies to control the messaging – and thus ensure compliance with applicable telemarketing regulations – more effectively, potentially, than if the call was conducted by a live agent.
How Soundboard Technology May Comport with the TCPA
Telemarketing companies navigating the TCPA should be keenly aware of the pitfalls of using wholly pre-recorded messages. However, soundboard technology represents a middle ground, where it is operated by a live agent in real time, but most of the responses themselves are pre-recorded. As such, is using soundboard or avatar technology prohibited or acceptable under the TCPA? To address this question, Yodel Technologies submitted their FCC petition for a declaratory ruling regarding soundboard technology’s compliance with the TCPA.
Yodel’s petition raises several arguments as to why soundboard technology should be acceptable under the TCPA:
- Soundboard telemarketing calls involve a high degree of interactivity with live human agents, unlike pre-recorded messages.
- Soundboard technology calls do not automatically play; rather, responses are chosen by live agents.
- The U.S. Court of Appeals for the Ninth Circuit has held that “tape recorded” messages by live agents do not violate the TCPA. Conversely, telemarketing calls that “cannot interact with the customer except in preprogrammed ways” would violate the TCPA.
- Past decisions and reports by the FCC suggest that the TCPA only prohibits “autodialed and pre-recorded voice message calls” that were entirely pre-recorded, such as robocalls. These decisions do not appear to prohibit use of prerecorded voice segments used as part of an otherwise live call.
Consequences for Telemarketing Companies if Soundboard Technology Violates the TCPA
A declaratory ruling from the FCC establishing that use of soundboard technology during telemarketing calls violates the TCPA could have far reaching impact. And there is reason to worry. In a May 12, 2017 decision, a D.C. Circuit Judge upheld the Federal Trade Commission’s (“FTC”) staff opinion that telemarketing calls utilizing soundboard or avatar technology should be treated the same as robocalls under the Telemarketing Sales Rule.
It is important to highlight a separate threshold issue that is ignored in Yodel’s declaratory ruling papers; namely, whether the soundboard/avatar technology platform is an automatic dialing system or autodialer within the meaning of the TCPA even though human intervention is involved. If the answer is “yes,” telemarketers will need to obtain prior express written consent from consumers before using the technology to place commercial calls.