As we previously discussed, the need for clarification as to the TCPA’s treatment of outbound calls made using soundboard technology (“soundboard calls”) is particularly manifest in light of two pending petitions before the FCC and the Supreme Court’s refusal to review the FTC’s decision to treat soundboard calls as robocalls subject to the Telemarketing Sales Rules. [See here and here].  Plaintiffs have sought to exploit the uncertainty; a spate of lawsuits contend that soundboard calls are prerecorded calls prohibited by the TCPA if made without prior consent.  Recently, the Western District of Oklahoma attempted to set a standard for the permissibility of these calls, but the decision may only engender more uncertainty. While professing that soundboard calls are not “categorically prohibited,” the court’s ruling fails to provide a roadmap for what types of soundboard calls would be permissible, beyond stating that a “soundboard call which did not interact with the customer except in preprogrammed not to mention meaningless ways” violated the TCPA.

Soundboard technology allows call center agents to interact with consumers on a real-time basis using a combination of audio clips and the agent’s own voice.  Because a live agent selects the audio clips to play based on the statements made by the called party, companies using or offering the technology have argued that these calls feature a degree of human interaction that means they should not be considered “prerecorded calls” subject to the consent requirements of the TCPA.

The decision in Braver v. NorthStar Alarm Servs. et al., No. CIV-17-0383-F, 2019 WL 5722207 (W.D. Okla. Nov. 5, 2019) arose from defendant Yodel Technologies’ challenge to the court’s July 2019 summary judgment order. There, the court had held defendants liable for violating 47 U.S.C. § 227(b)(1)(B) (generally requiring prior express consent for calls to residential landlines made using an artificial or prerecorded voice) by making soundboard calls without first obtaining the called party’s consent. Yodel Technologies moved for reconsideration of that ruling on the grounds that the court had effectively–and erroneously–held that all uses of soundboard technology are prohibited by the statute. Yodel also moved to decertify the class, arguing that class members had varying levels of interaction with live agents, showing that common issues failed to predominate over individualized issues.

The court began its analysis by addressing the recent controversy related to soundboard technologies in the TCPA context. Defendants in this case, along with other users of soundboard technology, have argued that because the soundboard agents and the called parties are able to take turns in their conversation with the help of many pre-recorded audio clips, soundboard calls can closely resemble real-time natural dialogues.  Yodel described these calls as “human-driven conversations.”  The court in Braver rejected Yodel’s argument that the statute only prohibits calls with no human interaction, but agreed with Yodel that it would be erroneous to hold—and insisted that the court had not held in the summary judgment ruling—that all uses of soundboard technology violate 47 U.S.C. § 227(b)(1)(B).  But the court concluded that such calls will violate the statute where the calls “never interact with the customer except in preprogrammed and meaningless ways.”

The court adhered to its ruling that summary judgment was appropriate in this case because the factual record showed that Yodel’s soundboard agents followed a script requiring them to “press buttons in a certain order” to deliver the preprogrammed audio clips and—most significantly—all calls started with the same prerecorded message.  Despite the resemblance to real-time interaction, the court apparently considered the initial greeting in these soundboard calls to be itself a violation of the statute – “every initial call began with the soundboard agent playing the first recording” that was a prerecorded voice stating: “Hello this is Amy, I am a security advisor, can you hear me okay?”  Because all calls started with a pre-recorded message delivered without the called party’s prior consent, the court seemed to suggest that the violation was complete regardless of the level of human interaction that may have occurred later in the call.

The same reasoning led the court to reject Yodel’s decertification motion.  The fact that some agents may have played clips responsive to whatever the called party said during the call, and class members may have experienced varying degrees of human interaction, was “ultimately immaterial to the court’s ruling” because every call began with a prerecorded message played without the called party’s prior consent.

This decision suggests that some degree of meaningful and spontaneous human interaction may save soundboard calls from violating the TCPA – at least when the calls do not start off with a prerecorded sound clip – but the decision fails to elucidate the degree of human interaction that would be required.  Companies using soundboard technology are left to hope that clarity will come from other court decisions or from the FCC in rulings on the pending petitions for declaratory rulings.