Sounding Out Stakeholders on Soundboard Technology

TCPA Connect

The Federal Communications Commission (FCC) has asked for input on a new petition addressing whether soundboard technology violates the Telephone Consumer Protection Act (TCPA).

In September, Yodel Technologies LLC filed a petition with the FCC seeking a declaratory ruling that its soundboard technology doesn’t run afoul of the TCPA’s prohibition on calls initiated with prerecorded voice messages. In the alternative, the company sought a retroactive waiver of liability under the statute.

As explained by Yodel, soundboard technology employs live agents who respond to call-recipient statements and questions by selecting one or more recorded responses during live calls. The live agent is on the call from its inception, the company told the FCC, and where necessary based on the recipient’s responses, can intervene in real time by speaking directly to the recipient.

Yodel contends that several FCC rulings, the Ninth Circuit’s 1995 opinion in Moser v. FCC, and a 2009 staff opinion letter by the Federal Trade Commission (FTC) suggested that calls must be entirely prerecorded and fully automated to fall within the scope of the TCPA. However, the FTC changed course three years ago, adopting a new perspective—that using soundboard technology was the functional equivalent of placing a prerecorded-message robocall—and requiring compliance by May 12, 2017.

The company had relied on Moser as well as the statements of the FCC and FTC, Yodel argued, believing in good faith that the rules applied only to calls that were prerecorded in their entirety. Thus, Yodel asked the FCC to retroactively waive application of the TCPA rules for the period prior to May 12, 2017, in the event the FCC declines to issue a declaratory ruling.

Less than a week after the petition was filed, the FCC issued a Public Notice seeking comment on Yodel’s petition. Comments were accepted until October 21 with reply comments due by November 4, 2019.

The request for input follows the Supreme Court’s denial of certiorari in a case filed by the Soundboard Association after the FTC changed its position on soundboard technology in 2016. The organization asserted that the agency was required to promulgate its change in stance through the notice-and-comment process of the Administrative Procedure Act (APA).

A Washington, D.C., federal court sided with the FTC, holding that its new position (expressed in a letter) was an “interpretive” rule not subject to the APA. The D.C. Circuit affirmed and the Soundboard Association asked the justices to take the case. They refused without comment, leaving the D.C. Circuit opinion—and the FTC’s letter—in effect.

To read Yodel’s FCC petition, click here.

To read the FCC’s Public Notice, click here.

Why it matters: The Public Notice offers stakeholders a chance to weigh in on the question of soundboard technology before the FCC decides on Yodel’s petition, which seeks a declaration that such calls do not violate the TCPA or, in the alternative, a retroactive waiver of liability for the company.



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