What is a Prerecorded Call for TCPA Purposes?: The Czar and the Baron Speak with the FCC to Push for Clarity on this Critical Issue

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Well, here’s where the big teaser pic from last week pays off.

FCC

As our readers know, the Baron and I have been spearheading the push for clarity on the issue of whether a prerecorded snippet played within an otherwise live call triggers the TCPA’s delivery content requirements (e.g., whether every such snippet must include an identification of the caller, an automated opt-out prompt, etc.). At stake is whether pre-recorded voice messages such as “this call may be recorded for quality assurance” or “please hold for an agent” might actually be illegal under the TCPA, even where proper consent to make those calls exists. Yikes.

We know that a Court in Florida held a wait queue message to be an actionable pre-recorded call—see here—and Plaintiffs continue to argue that any use of a pre-recorded voice in a call triggers automatic TCPA exposure. As the Courts seem to be struggling with this issue, the need for FCC action to clarify the scope of the statute is paramount before these lawsuits gain any further traction.

One company impacted by the TCPA’s lack of clarity— Yodel Technologies LLC—is taking a stand and seeking declaratory relief from the FCC. It filed a petition with the Commission in mid-September advocating, inter alia, that the TCPA is properly interpreted to apply only to calls that are made using an ATDS or to those calls that are wholly prerecorded, not to calls that include a series of messages played by a live agent in an interactive fashion with the consumer. To facilitate the FCC’s consideration of the petition, last week the Baron and I accompanied Yodel’s CEO, CCO and a member of the company’s ownership group for meetings with Commissioners O’Rielly and Carr and staff, as well as the Chief of Staff for Commissioner Rosenworcel, and the Chief of the FCC’s Consumer and Governmental Affairs Bureau, the Bureau’s Chief of Staff, and other key Bureau staffers, to discuss the need for clarity on these key issues.

I can’t say much about what these meetings entailed or what we were told, but for more information on the content of the meetings please take a look at the related ex parte filing: Yodel November 27 2019 Notice Of Ex Parte Presentations with Confirmation

We remain hopeful that we’ve made an impact and provided the FCC with the information and record it needs to reach the right conclusion on this issue of critical importance to TCPAWorld. But the Baron and I don’t plan to rest just yet. We will be back in action early next year when an additional series of meetings on these and other topics is likely. More to come.

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Published by Eric J. Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

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