United States: Does Use Of Soundboard Technology Violate The TCPA?

Last Updated: September 30 2019
Article by David O. Klein

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.

Soundboard Technology Calls Qualify as Robocalls Under the TSR

FTC Announces Settlement of Two Big Robocall Lawsuits

A New TCPA Law?

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions