Holiday Reminders and Avatar Update

                We are writing as a courtesy with two important legal alerts.  Our firm has a practice focused on national call center compliance and defense.  First, we wanted to remind you about the upcoming “no call” holidays around the country:

• November 24 (Thanksgiving)- AL, LA, MS, RI and UT
• November 25 (Acadian Day)- LA and MS
• December 23 (Christmas Observed)- LA
• December 25 (Christmas)- AL, LA, MS, RI and UT
• December 26 (Christmas Observed)- AL, LA, MS, RI and UT
• January 1 (New Year’s Day)- AL, LA, MS, RI and UT
• January 2 (New Year’s Day Observed)- AL, LA, MS, RI and UT

Secondly, we wanted to inform you about a significant FTC opinion released last week regarding avatar or “soundboard” technology.  On November 10, the FTC published its finalized new staff opinion letter regarding the use of such calls.  The letter should be immediately reviewed by any company who uses or offers avatar calling solutions.  Contact our firm for a copy.  The letter clarifies that FTC regulators will no longer treat avatar differently than other prerecorded robocalls. The new policy will become effective six months from now, on May 12, 2017.  Avatar calling occurs when a contact center agent plays pre-recorded snippets instead of using her/his own natural voice.  The phone agent can normally still interject with live voice as needed, but can also handle multiple calls simultaneously.  While not the official position of the Commission, the letter reflects the opinion of the FTC regulators who currently enforce the Telemarketing Sales Rule.

Two facts are encouraging. First, the letter has no direct effect on the FCC or the TCPA, which remain silent about soundboard technology. Second, the letter emphasizes that not all uses of avatar are illegal. For example, the technology may still be used within certain limitations for inbound, non-marketing and certain non-profit calls.  We had hoped the FTC would punt the avatar issue until after the new president takes over in January of 2017. The extent to which the new administration might seek to scale back relevant regulation and enforcement remains unclear.  The year 2017 should prove to be very interesting, on the soundboard front and many other regulatory issues facing the telemarketing industry.

Urgent Update: FTC Releases Final Staff Opinion Letter on Soundboard Technology, Determining it is Robocall

Last week the FTC published its finalized new staff opinion letter regarding avatar or "soundboard" technology. The letter is signed by the FTC's Lois Greisman, Associate Director, Division of Marketing Practices. The letter can be found here and should be immediately reviewed by any company who uses or offers avatar calling solutions.

The letter clarifies that FTC regulators will no longer treat avatar differently than other prerecorded robocalls. The new policy will become effective six months from now, on May 12, 2017.

Avatar calling occurs when a contact center agent plays pre-recorded snippets instead of using her/his own natural voice.   The phone agent can normally still interject with live voice as needed, but can also handle multiple calls simultaneously.  While not the official position of the Commission, the letter reflects the opinion of the FTC regulators who currently enforce the Telemarketing Sales Rule. 

Two facts are encouraging. First, the letter has no direct effect on the FTC or the TCPA, which remain silent about soundboard technology. Second, the letter emphasizes that not all uses of avatar are illegal. For example, the technology may still be used within certain limitations for inbound, non-marketing and certain non-profit calls. 

We had hoped the FTC would punt the avatar issue until after the new president takes over in January of 2017. The extent to which the new administration might seek to scale back relevant regulation and enforcement remains unclear.  The year 2017 should prove to be very interesting, on the soundboard front and many other regulatory issues facing our industry.

Businesses who have more questions about this change should contact a telemarketing attorney.