The Federal Trade Commission (FTC) has reversed its previous opinion that the use of prerecorded voice messages in calls manipulated by live operators, i.e. calls using “soundboard technology”, were not subject to the prerecorded call restrictions in the Telemarketing Sales Rule (TSR).
In its Informal Opinion Letter of November 10, 2016, the FTC noted that it had received a steadily increasing volume of complaints about the use of soundboard technology and in response determined 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.”
Calls using soundboard technology will be subject to the TSR’s existing prerecorded call restrictions beginning on May 12, 2017. Prior express written signed consent will be required to make calls for the sale of good or services using soundboard technology. The TSR exempts prerecorded calls made for non-telemarketing or non-advertising purposes, e.g. political or survey calls from this restriction, including calls using soundboard technology.
The FTC previously reasoned that the intrusion of a telemarketing call on a consumer’s right to privacy “may be exacerbated immeasurably when there is no human being on the other end of the line” and calls using soundboard technology did not have the same problem as a live agent could control the content of the call and respond to questions or comments from the called party. The FTC rejected this rationale in its Informal Opinion Letter finding that the use of soundboard technology was not a surrogate for the live agent’s actual voice and some companies were conducting conversations with multiple consumer simultaneously.
 Letter from Lois Greisman, Associate Director, Director of Marketing Practices, FTC, to Michael Bills, CEO, Call Assistant, LLC (Sept. 11, 2009).
 Letter from Lois Greisman, Associate Director, Director of Marketing Practices, FTC, to Michael Bills, CEO, Call Assistant, LLC (Nov. 10, 2016).