UNITED STATES OF AMERICA

Federal Trade Commission

WASHINGTON, D.C. 20580

 

Lois C. Greisman

 Associate Director

Division of Marketing Practices

November 10, 2016

Michael Bills

132 S 600 East, Suite 204 

Salt Lake City, UT 84102 

Re: September 11, 2009 Staff Opinion Letter on Soundboard Technology

Dear Mr. Bills: 

We are writing to you regarding the informal staff opinion letter we provided to your 

former company, Call Assistant, LLC, on September 11, 2009. 1

 Our September 2009 letter 

responded to Call Assistant’s inquiry regarding whether the Telemarketing Sales Rule’s (“TSR”) 

provisions governing outbound telemarketing calls that deliver prerecorded messages2

 apply to 

calls utilizing soundboard technology, which is technology that allows a live agent to 

communicate with a call recipient by playing recorded audio snippets instead of using his or her 

own live voice. In the September 2009 letter, staff stated its opinion that the technology, as 

described by Call Assistant, would not be subject to the prerecorded message provisions of the 

TSR. Staff’s opinion was based on important features that Call Assistant highlighted about its 

technology – i.e., that for the entire duration of a call made using the technology, a single live 

agent stays with the call from beginning to end, listens to every word spoken by the call 

recipient, determines what is heard by the call recipient, and has the ability to interrupt 

recordings and use his or her own voice to communicate with the call recipient if needed. In our 

view at that time, these features made the calls “virtually indistinguishable” from normal twoway conversations with live operators and placed them outside the scope of the TSR’s 

prerecorded message provisions. 

Since the issuance of our September 2009 letter, staff has received a steadily increasing 

volume of formal and informal complaints from consumers about telemarketing calls utilizing 

soundboard technology. Consumers complain that during these calls they are not receiving 

appropriate recorded responses to their questions or comments. Consumers further complain that 

often no live telemarketer intervenes to provide a human response when requested to do so, the 

recorded audio snippets that are played do not adequately address consumer questions, or the call 

 

1 A copy of the September 11, 2009 staff opinion letter can be found at 

http://www.ftc.gov/sites/default/files/documents/advisory opinions/opinion-09-1/opinion0901 1.pdf. Call 

Assistant, LLC, filed for Chapter 7 bankruptcy on August 13, 2015. In re Call Assistant LLC, Case No. 15-11708 

(KJC) (Bankr. D. Del. Aug. 13, 2015).

2 16 C.F.R. § 310.4(b)(1)(v).
Michael Bills

Page 2 of 6 

is terminated in response to consumers questions. Indeed, media reports also have taken note of 

this phenomenon, which some in the press have dubbed telemarketing “robot” calls.3 Simply 

put, since we issued the letter in 2009, staff has seen evidence of the widespread use of 

soundboard technology in a manner that does not represent a normal, continuous, two-way 

conversation between the call recipient and a live person. This is inconsistent with the principles 

we laid out in our September 2009 letter as well as our understanding of the technology at the

time we issued the letter.4 Moreover, this type of use does not provide the consumer benefits 

upon which we based our September 2009 opinion. 

In response to rising complaints and concerns, staff reached out to the Professional 

Association for Customer Engagement (“PACE”), which is a trade association representing call 

centers, and the Soundboard Association, a trade organization representing manufacturers and 

users of soundboard technology. During the last few months, we have had multiple productive 

discussions and meetings with PACE and the Soundboard Association to learn more about 

soundboard technology and obtain industry input regarding the regulatory status of that 

technology. Both PACE and the Soundboard Association were responsive to requests, provided 

meaningful input to assist staff in its review of this technology, and highlighted the potential 

benefits of responsible soundboard use. Staff carefully considered the input of PACE and the 

Soundboard Association. 

A fundamental premise of our September 2009 letter was that soundboard technology 

was a surrogate for the live agent’s actual voice. A human being cannot conduct separate 

conversations with multiple consumers at the same time using his or her own voice. 

Nonetheless, some companies are routinely using soundboard technology in precisely this 

manner, and these companies are improperly using our September 2009 letter to justify their 

actions in court proceedings5

 and in investigations. Indeed, Call Assistant noted publicly that 

 

3 See, e.g.., Sean Gallagher, The New Spam: Interactive Robo-Calls From the Cloud as Cheap as E-Mail, ARS 

TECHNICA, (Apr. 15, 2015), http://arstechnica.com/information-technology/2015/04/the-new-spam-interactive-robocalls-from-the-cloud-as-cheap-as-e-mail; Alexis C. Madrigal, Almost Human: The Surreal, Cyborg Future of 

Telemarketing, THE ATLANTIC, (Dec. 20, 2013), http://www.theatlantic.com/technology/archive/2013/12/almosthuman-the-surreal-cyborg-future-of-telemarketing/282537/; Alexis C. Madrigal, The Only Thing Weirder Than a 

Telemarketing Robot, THE ATLANTIC, (Dec. 13, 2013), http://www.theatlantic.com/technology/archive/2013/12/theonly-thing-weirder-than-a-telemarketing-robot/282282/; Zeke Miller & Denver Nicks, Meet the Robot Telemarketer 

Who Denies She’s a Robot, TIME, (Dec. 10, 2013), http://newsfeed.time.com/2013/12/10/meet-the-robottelemarketer-who-denies-shes-a-robot/; Kris Hundley, These Telemarketers Never Stray From Script, TAMPA BAY 

TIMES, (Nov. 14, 2013), http://www.tampabay.com/news/these-telemarketers-never-stray-from-the-script/2152303. 

4 For example, Call Assistant highlighted the ability of its agents to use their own voices during calls using its 

soundboard technology: “Our technology merely substitutes sound files for the agent’s voice (although the agent 

can interject with his or her voice at any time) . . . .” (emphasis supplied). See also September 2009 Letter at 1 (“In 

response to the greeting, the agent may elect to speak to the call recipient using his or her voice, or may press a 

button to play an appropriate recorded script segment. . . . At all times, even during the playing of a recorded 

segment, the agent retains the power to interrupt any recorded message to listen to the consumer and respond 

appropriately.”) (emphasis supplied).

5 See, e.g., Fitzhenry v. ADT Corp., No. 9:14-CV-80180 (S.D. Fla.); Barrett v. ADT Corp., No. 12:15-CV-1348 

(S.D. Ohio).
Michael Bills

Page 3 of 6 

one of the advantages of its technology is that “an agent can conduct multiple calls 

simultaneously.”6 Staff also has seen evidence that call centers are using soundboard technology 

to increase the number of outbound calls they can make. In addition, in our discussions and 

meetings, industry representatives acknowledged that call centers routinely use soundboard 

technology to allow a single live agent to handle more than one call at the same time. 

The plain language of the TSR provision governing prerecorded calls imposes restrictions 

on “any outbound telephone call that delivers a prerecorded message.”7 It is indisputable that 

calls made using soundboard technology deliver prerecorded messages. As such, under the plain 

meaning of the words in the TSR’s prerecorded call provision, outbound telemarketing calls 

using soundboard technology are covered because such calls “deliver a prerecorded message.”8

Given the actual language used in the TSR, the increasing volume of consumer 

complaints, and all the abuses we have seen since we issued the September 2009 letter, we have 

decided to revoke the September 2009 letter. It is now staff’s opinion that outbound 

telemarketing calls that utilize soundboard technology are subject to the TSR’s prerecorded call 

provisions because such calls do, in fact, “deliver a prerecorded message” as set forth in the plain 

language of the rule.9 Accordingly, outbound telemarketing calls made using soundboard 

technology are subject to the provisions of 16 C.F.R. § 310.4(b)(1)(v), and can only be made 

legally if they comply with the requirements set forth in Section 310.4(b)(1)(v)(A) (for calls 

selling goods or services), Section 310.4(b)(1)(v)(B) (for calls seeking charitable contributions 

from members or prior donors), or Section 310.4(b)(1)(v)(D) (healthcare messages by a covered 

entity or its business associate under HIPAA). 

In reaching this conclusion, staff did consider whether an express requirement that live 

agents using soundboard technology only handle one call at a time would change the analysis. 

Staff has concluded that it would not. First, even with a 1-to-1 limitation in place, such calls 

would still “deliver a prerecorded message” and therefore would fall within the plain language of 

16 C.F.R. 310.4(b)(1)(v). Moreover, in staff’s view, a 1-to-1 limitation would not stop abusive 

use of the technology. Based on preliminary information provided by industry representatives, a 

significant percentage of the total number of call center seats utilizing soundboard technology 

are used to make telemarketing or lead generation calls. A 1-to-1 limitation would allow a lead 

generation operation to use soundboard technology in which live operators simply press a button 

to play a prerecorded message offering a good or service that asks the consumer to say “yes” or 

press 1 on their phone if they are interested. If the consumer says yes or presses 1, the live agent 

would then transfer the call to the seller who makes a telemarketing pitch. Such calls are

indistinguishable from standard lead generation robocalls that are governed by the TSR and are 

the subject of a large volume of consumer complaints and significant telemarketing abuse. The 

 

6 Nougar, L.C., et al. v. Revocalize, LLC, et al., No. 2:11-cv-127, DE 41 (D. Utah, Oct. 18, 2011).

7 16 C.F.R. § 310.4(b)(1)(v). 

8 Id.

9 Id. Staff notes that representatives of both PACE and the Soundboard Association disagree with this conclusion.
Michael Bills

Page 4 of 6 

fact that a live operator, instead of a computer, “delivers” the prerecorded message and transfers 

interested consumers to sellers makes little difference from the call recipient’s perspective. 

Thus, even a 1-to-1 limitation would permit soundboard technology to be used to deliver calls 

that are indistinguishable from the telemarketing robocalls that consumers consider to be abusive 

and that are illegal under the TSR. 

Finally, staff does recognize that when the Commission adopted the TSR’s robocall 

provisions TSR in 2008, it foresaw that technology could evolve to allow the use of interactive

prerecorded messages in telemarketing calls in a manner “essentially indistinguishable from 

conversing with a human being.”10 Indeed, soundboard technology, when used properly, may 

one day approach that level of proficiency. If and when such advances occur, the Commission 

noted that parties could seek further amendment of the TSR or exemptions from the prerecorded 

message provisions.11 

In order to give industry sufficient time to make any necessary changes to bring 

themselves into compliance, the revocation of the September 2009 letter will be effective six

months from today, on May 12, 2017. As of that date, the September 11, 2009 letter will no 

longer represent the opinions of FTC staff and cannot be used, relied upon, or cited for any 

purpose. 

In closing, staff notes that revocation of the September 2009 opinion letter does not mean 

that the TSR prohibits all calls made using soundboard technology. To the contrary, call centers 

can still use soundboard technology for in-bound calls and to place a wide variety of outbound 

calls, such as non-telemarketing calls (e.g., political calls, survey calls, and pure informational 

calls), telemarketing calls that fall within the exemptions set forth in Section 310.4(B)(1)(v)(A), 

(B), or (D), certain types of charitable donation calls, and calls that are expressly exempt from 

the TSR under Section 310.6 (e.g., business-to-business calls). In fact, the preliminary data 

provided indicates that a significant percentage of call center seats that utilize soundboard 

technology are used for in-bound calls or to place non-telemarketing calls, such as political or 

charitable calls. As long as those calls remain outside the scope of the TSR, companies can 

continue to use soundboard technology for those types of calls without violating the TSR. Please 

note, however, that we do not opine on whether the use of such technology complies with state 

or other federal laws, including the Telephone Consumer Protection Act, 47 U.S.C. § 227, or its 

corresponding regulations implemented by the Federal Communications Commission, 47 C.F.R. 

§ 64.1200. 

Please be advised that the views expressed in this letter are those of the FTC staff, subject 

to the limitations in 16 C.F.R. § 1.3. They have not been approved or adopted by the 

Commission, and they are not binding upon the Commission. However, they do reflect the 

views of staff members charged with enforcement of the TSR.

 

10 Telemarketing Sales Rule, 73 Fed. Reg. 51,164, 51,1180 (Aug. 29, 2008).

11 Id. (“Accordingly, nothing in this notice should be interpreted to foreclose the possibility of petitions seeking 

further amendment of the TSR or exemptions from the provisions adopted here.”)
Michael Bills

Page 5 of 6 

 

 Sincerely,

 

 Lois C. Greisman

Associate Director 

 Division of Marketing Practices

Cc: Michele A. Shuster, Esq. 

General Counsel, PACE 

6530 W. Campus Oval, Suite 210 

New Albany, OH 43054 

The Soundboard Association 

c/o Peter B. Miller, Esq.

Crowell & Moring LLP

1001 Pennsylvania Ave., NW 

Washington, DC 20004 

Call Assistant, LLC

78-00 3rd Street N., Suite 900 

St. Paul, MN 55128 

Ronald S. Gellert 

Gellert Scali Busenkell & Brown, LLC

1201 N. Orange Street, Suite 300 

Wilmington, DE 19801 

Counsel for Debtor, Call Assistant, LLC 

David Carickhoff 

Jennifer L. Dering

Archer & Greiner, P.C.

300 Delaware Ave., Suite 1100 

Wilmington, DE 19801 

Bankruptcy Trustee for Call Assistant, LLC 

Noguar

5286 S 320 West 

Murray, UT 84107 

Avatar Technologies, Inc.

138 Columbus Ave., 2nd Floor 

Mount Vernon, NY 10553 
Michael Bills

Page 6 of 6 

 Robby H. Birnbaum 

Greenspoon Marder 

One Boca Place, 2255 Glades Road, Suite 400-E 

Boca Raton, FL 33431 

Counsel for Avatar Technologies, Inc.