New Petition Seeking FCC Clarification That Calls Using Soundboard Technology Are Not “Entirely Prerecorded Calls” Prohibited By the TCPA

The FCC’s TCPA docket now has two pending petitions for declaratory ruling on the question as to whether outbound telemarketing calls made through soundboard technology are prohibited communications if made without prior consent under the TCPA. As we predicted in April 2019, industries using soundboard technology to streamline their telemarketing operations are increasing their efforts before the FCC in seeking review of this very issue.

The FCC recently issued a Public Notice seeking comments on a Petition for Declaratory Ruling filed by Yodel Technologies, a Florida-based company providing other entities with outbound telemarketing services using soundboard technology. The Yodel Petition “fully supports” “a currently pending Petition for Emergency Declaratory Ruling filed by NorthStar Alarm Services, LLC, that sets forth a litany of persuasive reasons why the Commission should rule that use of soundboard technology does not violate the TCPA.” The Yodel Petition also “submits its own justifications” to assist the FCC in reaching this conclusion or, alternatively, in waiving application of any rules prohibiting soundboard technology prior to May 12, 2017.

According to Yodel, as “calls using recorded audio clips specifically selected and presented by a human operator in real-time,” soundboard technology should not be considered “prerecorded voice message.” Yodel argues that the FCC’s 1992 TCPA Report and Order implied that prerecorded voice message only refers to calls and messages that are entirely prerecorded. In support, it observes that the FCC has always been and has only been using examples of fully automated calls when discussing TCPA implementing rules in the past twenty-seven years.Yodel’s Petition emphasizes that a caller’s ability to “ascertain the propriety of proceeding with a message” is an important characteristic in distinguishing between live and prerecorded calls – a view supported by case law in the Ninth Circuit. As such, Yodel advocated that outbound calls using soundboard technology would not be prerecorded calls when live operators would remain “available to interact with every called party from inception.”

After the Supreme Court declined in April 2019 to review a challenge to a Federal Trade Commission decision treating outbound telemarketing calls made through soundboard technology as robocalls, a wave of litigation ensued. Many federal courts, including the Eleventh Circuit (with appellate jurisdiction over Florida), have not examined soundboard technology in the context of TCPA claims in the past. Others have not had a consistent view on soundboard technology. As Yodel put it, clarity is needed because of the “serious reliance interests at stake.”

Interested parties have until October 21, 2019 to submit comments to the FCC on the Petition. Reply comments are due on November 4, 2019. Drinker Biddle’s TCPA team will continue to monitor this docket and related developments.

Laura H. Phillips

About the Author: Laura H. Phillips

Laura Phillips applies her expansive and incisive knowledge of the telecommunications industry to advise entrepreneurs on opportunities and challenges related to new communications technologies. She is particularly focused on spectrum auctions, network interconnection, access and universal service and counsels clients on regulatory matters stemming from communications-service convergence. A United States Certified Privacy Professional (CIPP/US), Laura is an authority on the intersection of telecommunications and privacy. She also is deputy chair of the firm’s government and regulatory affairs practice group, where her goal is to ensure that all clients receive effective and efficient service.

Qiusi Y. Newcom

About the Author: Qiusi Y. Newcom

Qiusi Newcom brings efficiency and reliability in navigating clients through regulatory issues in telecommunications, export controls, economic sanctions and global privacy laws. Her experience in these areas uniquely positions her to help companies bridge compliance gaps in light of emerging legal developments such as multi-agency actions to protect U.S. communications supply-chain security and foreign direct-investment considerations involving critical telecommunication infrastructures or sensitive personal data. Having lived in and obtained law degrees in both China and the U.S., Qiusi’s understanding of cultural factors and local customs adds immense value to her counsel for business activities across borders.

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