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Sounding Off On The Soundboard: FTC Considerations

by David A. Schnobrick and Robby H. Birnbaum, Regulatory Compliance and Defense Greenspoon Marder, P.A. - April 26, 2017

Sounding Off on the Soundboard:
FTC Considerations
David A. Schnobrick, JD [2015], Bar Admission Pending,  
 Robby H. Birnbaum, Partner,
Regulatory Compliance and Defense
Greenspoon Marder, P.A.
“You very quickly get adjusted to the idea that he talks and you think of him really just as another person.”
- Dave Bowman, about the HAL 9000 in 2001: A Space Odyssey
Watch any science fiction film and odds are very good that you will note many astonishing ways in which science fiction has morphed into science fact. While true artificial intelligence like the HAL 9000 computer may yet lie in the distant future, the line continues to grow blurrier. It has been reported, for example, that a tailored version of Watson—the famous IBM chess-playing computer champion at the pinnacle of big data, artificial intelligence, and speech recognition—is being developed to staff phone lines, and industries can’t get in line fast enough to “hire” him.
While robotic telemarketing may be some time off, call center agent-assisted automation offers a similar technological advent. It automates certain tasks routinely performed by call center agents, and is often touted as not just a way to reduce costs, but also to improve agent job satisfaction. Cross-populating data and software tools, identity-theft prevention technology, and intelligent CRM solutions are just a few examples of such modern telemarketing advances. However, one technology brought itself to the attention of regulatory agencies including the Federal Communications Commission (“FCC”) and the Federal Trade Commission (“FTC”).
Pre-recorded audio technology is a subset of agent-assisted automation, and it has had many wondering whether the unveiling of an actual HAL 9000 computer is indeed around the corner—including Michael Scherer, TIME magazine’s Washington Bureau Chief. Mr. Scherer’s 2013 interaction with a telemarketer who identified herself as “Samantha West” became a viral source of internet speculation at the time as to whether the telemarketer was a live person or a robot. TIME reporters called back several times, and even went so far as to publish the telephone number—and some very interesting recordings—online. While the number has since been disconnected, the call recordings themselves can still be located by Googling Ms. West’s name.
It eventually came to light that Samantha West was not a robot, but rather a form of agent-assisted automation known as a soundboard. The telemarketing firm using Samantha West was employing technology that allows a call center phone agentto indirectly conversewith consumers—on a real-time basis—using short, prerecorded audio files that, when strung together, simulate actual conversation. This is accomplished, in many instances, without the call center agent ever speaking a single word.
Rather, it permits an adept agent sitting in front of a soundboard interface toconversewith theconsumer using properly sequenced keystrokes, mouse clicks, or taps made on a touch-screen interface. Each stroke, click, or tap is logically connected to a spoken sentence, a question, or even conversational segues such as laughter or “mmm-hmm.” In the newest incarnations, a soundboard can even permit an agent to fluidly switch back and forth—manually or automatically— between his or her own voiceand prerecorded sound files. In virtually all cases, theconsumer on the phone experiences a seamless conversation—and is none the wiser.
Regulatory Concerns
The FTC’s TelemarketingSales Rule (“TSR”) contains consumer protection language that, among other things, imposes requirements upon certain calls containing prerecorded messages. For example, the TSR prohibits a seller from initiating an outbound telephonecallthat delivers a prerecorded messageunless: (1) the call recipient gives their express written consent to receiving prerecorded calls from (or on behalf of) that specific seller; (2) the seller clearly and conspicuously discloses the reason for the consent (i.e., to make prerecorded calls to the person); (3) the seller receives the consent without requiring it as a condition to a sale; and (4) the consent includes the person’s signature and telephone number.
Similarly, the FCC’s Telephone Consumer Protection Act (“TCPA”) imposes another overlapping set of restrictions on telemarketing.  The TCPA prohibits initiating or causing the initiation of any call using an artificial or prerecorded voice to, among other things, any cellular or residential telephone number without the prior express written consent of the called party. As soundboard use increases, concern is also growing over the relationship and interaction between the TSR, the TCPA, and the soundboard; both federal regulations can impose civil fines per each violation, and under certain circumstances, the fines can be trebled.
Where does soundboard technology fall in the regulatory framework? Ambiguity in the statutes’ definitions provides one source of concern, both from industry and regulator perspectives. Theterm“prerecordedmessage”isnot definedby either the TSR or the TCPA, but it is easy to see why industry proponents of soundboard technology might be alarmed. Using a commonsense, plain understanding of the phrase, prerecorded audio delivered by a soundboard would easily seem to come within the ambit of the TSR and the TCPA. Industry groups, however, argue the opposite, proposing that to “deliver a prerecorded message” implies a one-way prerecorded communication that does not allow for the possibilityof thecall recipient interacting with the party sending the message. Contextual guidance, they point out, can be found within other provisions of the federal regulations, such as the interactive opt-out mechanism required by the TSR when a prerecorded telemarketing call is initiated and may be answered by a live person.
When a live telemarketer initiates a call, the party receiving it can simply say “stop calling me,” whereas a telemarketing call that delivers a prerecorded message—generally incapable of receiving an oral do-not-call request—requires another method: the interactive opt-out. Thus, during a soundboard-assisted call—which permits the call center agent to intersperse his or her own voice if needed—the agent could simply choose to interrupt the prerecorded audio output and intercede in the call if the recipient expresses a desire to be added to the company’s internal do-not-call list. Because the do-not-call requirements of the statutes are honored in the same way as if the telemarketing conversation is held by a live, speaking agent, no interactive opt-out mechanism is needed. Because no interactive opt-out mechanism is needed, the soundboard-assisted call does not exactly square with the statutory construct of a “prerecorded message” as contemplated and envisioned by the statute. The position is not without some degree of logical support.
                  Furthermore, the position is bolstered by a 2009 informal FTC staffopinion that directly addressed theTSR’s prerecorded message rules as applied tocalls placed using one particular brand of soundboard technology.In a letter signed by the Associate Director for the FTC’s Division of Marketing Practices, thestaff opinion letter concludes that soundboard technology as described therein (and largely consistent with the core technology as it still exists today) does not violate the TSR or other applicable laws. The TSR as amended, the letter notes, prohibits prerecorded message calls that do not allow for interaction between callers and recipients. Soundboard-initiated calls proceed in a manner nearly indistinguishable from calls made by live telemarketing agents. Accordingly, the staff noted, presuming the rest of the TSR is honored, its prerecorded message provisions would not apply to conversations such as soundboard-initiated calls where a live agent continuously interacts with a call recipient in a two-way conversation—despite being limited to a finite library of minute, sequentially delivered prerecorded messages. Relying in parton the informal FTC staff opinion, thecall centerindustryhas continued to use and investin soundboard-type technologies. Worry is mounting, however, that the FTC will formally reverse its earlier staff opinion, and if it does so, call centers employing soundboard technology may be devastated beyond recovery forrelying on it. Out of fairness, it is hoped that new regulations or amendments promulgated by the FTC or other regulatory bodies—if any—would be forward-looking only.
                  To take the point even further, a number of reasons exist for why soundboard technology lies outside the ambit of the federal regulatory framework altogether.
            Consumer Protection Concerns
When the FTC amended the TSR in 2008, it also released a Statement of Basis and Purpose that described four consumer protectionconcerns justifying the amendments:  (1) the self-interest of sellers inretaining their established consumers was insufficientto prevent the sellers from abusively telemarketing to their established consumers using prerecorded messages; (2) the abusive invasionof consumer privacy represented by prerecorded messages; (3)the potential costs and burdens on consumers; and (4) the possibility that opt-out approaches mightnot adequatelyprotectconsumers.
Soundboard-assisted calls fail to raise the specter of these regulatory justifications, however. Soundboard calls arehandled byalive and engaged agent for the duration of the call, just as with a traditional call. As the agent is generally able to manage only one interaction at a time, the abusive call volume capability of a prerecorded message telemarketing campaign as feared by regulators is impossible. Counterintuitively, it is also likely that soundboard use peripherally increases certain of the consumersafeguards originally contemplated by the legislature in enacting TSR. It is notable that soundboard-assisted calls are interactions, despite the fact that the agent is employing prerecorded audio files as the medium of communication. To the consumer, the callis all but indistinguishable from a traditional telemarketing call with a “speaking” agent.
Critics, consumer activists, and regulators are quick to point out that theoretically, anagent mayhandlemultiple calls at a time. While certainly this is possible, human limitations will always cap the number of calls an agent can realistically manage. How many calls would an agent need to be actively “handling” for the interaction to pass from the realm of “conversation” to “prerecorded message” for regulatory purposes? While reports claim agents sometimes run two or three calls at a time, at present, there is no precedential case law on the issue. Courts are only recently becoming more familiar with the technology as it becomes tangentially related to matters before them. For example, a federal court in Florida recently heard United States of America v. Corporations for Character, L.C., et al., a case where the defendant conducted multiple telemarketing campaigns using soundboard technology. The United States Patent and Trademark Office heard Fextel, Inc. d/b/a v. Avatar Technologies, Inc., in which the Office was called upon to ascertain the uniqueness of a particular soundboard technology. A federal court in Texas heard Clark, et al. v Avatar Technologies Phl, Inc., et al., a case that alleged violation of, among other regulations, the TCPA. The case was ultimately dismissed.
Soundboard-assisted callsmay even encourage compliance with consumer protection laws and regulations.  One of the TSR’s requirements involvescertain mandatory disclosures, and another requires proper authorization for all charges, and a number of regulatory constructs issue blanket prohibitions on unfair, deceptiveand abusive acts or practices. Soundboard technology can facilitate compliance with these requirements byusingpre-approved sound files that have been reviewed in advance. By using a library of preapproved audio files, soundboard systems can theoretically ensure that disclosures are correctly made, and eliminate misrepresentations, disparaging remarks, and high-pressure tactics.
While such positive attributes look good on paper, the Corporations for Character court noted that the opposite is equally possible.  According to the government in the case, at least some of the prerecorded audio files being used in the telemarketing campaign contained deceptive information themselves, and while the issue was not central to the case, it demonstrated, from a compliance standpoint, the technology may be only as good as its programmers. Further, because agents are usually able to intercede in the calls andinterjecttheir own voices, this legislative concern, purportedly eliminated by soundboard-assisted technology, is only a click or tap away. To counter this temptation, the soundboard software notateswhen this occurs, and supervisors are able to review call recordings to detectscript deviations and minimize the number of calls in need of review.
One of soundboard technology’s most powerfully positive attributes, however, is its ability to level the playing field for call center agents concerning any number of variables. One leading company touts the technology as “Lead Generation without the Accent” due to its ability to deliver informationin a clear, articulate manner free of accents orpoorgrammar. The most introverted or thick-accented individual need only possess the ability to click with a mouse or tap on a touch screen to be transformed into a linguistically fluent, lead-generating, sales guru superstar. Further, the need to train and retrain salespeople on a particular organization’s sales process vanishes—all that is required is for the software to be loaded with the proper response trees—and as one leading software provider claims, the call center agents instantly become master salespeople.

So, as the FTC focuses on other contemporary issues, any reevaluation of soundboard technology vis-à-vis federal regulatory frameworks remains on the back burner. If the FTC chooses to retreat from its 2009 letter and decides that a soundboard system does, in fact, come within the regulatory auspices of, say, the TSR, the technology may be dealt a crippling blow: if each mouse click suddenly became a “prerecorded message” requiring appropriate disclosures, the technology would be rendered virtually unworkable. From a policy standpoint, it is a defensible position that soundboard usage does not implicate the same consumerprotection concernsas the prerecordedmessages contemplated by the TSR, and may actually encourage compliance. In the final analysis, it is the consumer who benefits; this must always form the frame for the larger regulatory debate. 

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