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

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


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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