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Supreme Court Denies Certiorari in Case Challenging FTC Classification of Soundboard Technology

On April 15, 2019, the Supreme Court declined to grant certiorari to a case challenging a Federal Trade Commission (“FTC”) opinion designating “soundboard” calling technology as a form of robocall.

Soundboard technology, also referred to as avatar technology, allows call center agents to interact with consumers on a real-time basis by using recorded audio clips in combination with or in lieu of the agent’s own voice. In 2009, the FTC took the position that soundboard technology calls were not robocalls because they required the intervention of a live operator. In a 2016 Staff Opinion Letter, the FTC reversed its position and determined that using soundboard technology was the functional equivalent of placing a prerecorded message robocall.

The Soundboard Association, a trade group of companies that make and use soundboard technology, challenged the order in federal court. In the most recent decision, the D.C. Circuit allowed the FTC’s letter to stand. The Soundboard Association asked the U.S. Supreme Court to review that decision, but the Court declined to hear the matter.

As a result, the D.C. Circuit’s decision (and consequently, the FTC’s 2016 Letter) remain intact. Businesses should expect the FTC to treat soundboard technology as an artificial or prerecorded voice and should tailor their compliance practices accordingly. Retaining experienced counsel to evaluate your communications platforms can help prevent regulatory pitfalls and ensure your business’s compliance with applicable state and federal law.

Michele is the Managing Partner at M&S and former Chief of the Ohio Attorney General’s Consumer Protection Section. Bringing more than two decades of experience in the consumer protection arena, she advises highly regulated businesses on a wide range of telemarketing, privacy, and other consumer protection matters.

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