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District Court in Free Cruise Case Rules that Avatar Technology is Subject to TCPA Regulations

a cruise ship heads toward the horizion

Fri, 12/13/2019 - 13:15

A recent ruling by the Northern District of Illinois Court in a Telephone Consumer Protection Act (TCPA) class action adds to a growing body of case law that holds that avatar technology should be considered a “precorded voice” for the purposes of telemarketing regulations.

Also known as “soundboard technology,” avatar technology was described by the D.C. District Court of Appeals as a technology that “enables telemarketing agents to communicate with consumers over the phone by playing prerecorded audio clips instead of using the agent’s live voice. The agent can choose a prerecorded clip to ask questions or respond to a consumer while retaining the ability to break into the call and speak to the consumer directly. Soundboard also enables agents to make and participate in multiple calls simultaneously.”

The case—Bakov v. Conslidated World Travel, Inc. d/b/a Holiday Cruise Line, No. 15 C 2980, 2019 WL 6699188 (N.D. Ill. Dec. 9, 2019)—centered on alleged violations committed by an Indian call center hired by the defendant. This vendor used avatar technology in order to advertise free cruises to consumers without their prior express written consent. The defendant claimed that consent was required because the snippets of messages used in soundboard technologies do not constitute a “prerecorded message” under the TCPA. The defendant argued that the designation as a “prerecorded message” should apply “only [to] telephone calls that deliver a single, monolithic message that is ‘blasted’ to many recipients at the same time without any variation.”

The court rejected this argument and found the defendant to be vicariously liable for the offending calls. Relying on the Webster’s dictionary definition of “prerecorded” as “recorded in advance,” observing that the text of the TCPA does not offer any competing definition, and noting that the TCPA defines numerous other similar terms, the court determined that “the failure to define ‘prerecorded’ differently from its plain meaning while giving a special definition for other terms . . . is evidence that Congress intended for the plain meaning of the word to control.”

Avatar technology is a relatively new dialing method. It did not exist when the TCPA was written. This leaves it up to the courts to determine how this dialing technology should be regulated. The Bakov decision follows other recent legal precedent—including last year’s D.C. Circuit decision in Soundboard Ass’n v. Fed. Trade Comm’n and the Western District of Oklahoma’s decision earlier this year in Braver v. NorthStar Alarm Servs., LLC—that holds that soundboard calls are subject to the same regulations as precorded calls, such as robocalls. As the old idiom goes: once is happenstance, twice is coincidence, three times is a trend.