Today’s post is about end runs. And, no, we haven’t started covering the NFL Draft.

Unified Data Services, LLC is in a tight spot. The operators in their call centers use Soundboard, a technology that allows operators to play recorded clips that can be interrupted with live communication. In some cases, a single operator may use Soundboard to run multiple calls simultaneously.

In 2016, the FTC issued an opinion letter concluding that Soundboard violates the “robocall” provision of the Telemarketing Sales Rule, 16 C.F.R. § 310.4(b)(1)(v). The opinion letter also rescinded the 2009 advisory opinion letter blessing the use of Soundboard. If enforced, the opinion letter would bench an entire industry. 

UDS brought suit. See Unified Data Services, LLC et. al. v. United States Federal Trade Commission, No. 2:19-CV-00698 (D. Nev. 2019). The company argues that the FTC shouldn’t be allowed to work such a dramatic shift in the law by opinion letter. Instead, the FTC should engage in its normal rule-making process, giving people (including corporations, my friend) the opportunity to weigh in. Anything less is an end run around the laws requiring public notice and comment.

UDS also targets the substance of the FTC’s opinion letter. According to its complaint, the TSR was intended to target “a specific evil: one-way, pre-recorded communications that do not involve any human interaction, also known as a ‘robocall.’” As UDS sees it, the use of Soundboard doesn’t run afoul of that rule—there’s a human being on the other end of the line. 

The case will determine not only the future of Soundboard, but the scope of the FTC’s opinion letters. And the only people watching more closely than UDS will be those of us here at TCPAWorld.