Callers Beware: Court Finds Avatar Technology Is Subject To TCPA Regulation  

December 29, 2022

Avatar technology, also sometimes referred to as “soundboard technology,” provides an interactive experience for telephone call recipients. Rather than simply listening to an entirely pre-recorded message, recipients can respond to questions from and ask questions of the avatar, which is itself controlled by a live person or AI.

This adaptable technology has become a popular alternative for telemarketers to pre-recorded messages, which are heavily regulated under the Telephone Consumer Protection Act (TCPA). And indeed, there are plenty of sound arguments for why avatar technology should not be subject to the TCPA:

  • There is a high degree of interactivity between the recipient and the avatar, to which responses are then triggered by the live agent.
  • Live agents select specific avatar responses that vary depending on the recipient’s responses and queries.
  • Live agents can “take over” and speak directly to the recipient at any time.
  • Avatar technology arguably allows for greater understanding and less confusion because “human error” is removed from the responses, including possible inadvertent misstatements from the live agent.

… and so on.

A few days ago, the U.S. District Court, Western District of Washington issued a decision granting class certification in a case styled Williams v. PillPack, LLC, 2022 WL 17904232 (W.D. Wash. Dec. 23, 2022). While the Williams case dealt with several certification and TCPA issues, what stood out was how the court summarily discussed the use of avatar technology without any sort of nuanced discussion whatsoever, going so far as implying that unless the defendant could present evidence that its media campaign used “live voice exclusively,” TCPA liability may be present.

Williams continues a trend of federal courts treating avatar technology as pre-recorded messages under the TCPA. In early 2022 the U.S. District Court, Northern District of Illinois in a case styled Black v. Impression Interactive, 2022 WL 169652 (N.D. Ill. Jan 19, 2022) issued an opinion in which the court admitted that it was “unfamiliar with ‘soundboard technology’,” but relied upon decisions issued by two other courts granting summary judgment in plaintiffs’ favor cases based on defendant’s use of soundboard technology. See Black, 2022 WL 169652, at *5 (citing Bakov v. Consol. World Travel, Inc., 2019 WL 6699188 (N.D. Ill. Dec. 9, 2019); Braver v. NorthStar Alarm Servs., LLC, 2019 WL 3208651 (W.D. Okla. July 16, 2019)).

The Williams case is one to keep an eye on, and we will provide an update if and when one becomes available.

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Brett D. Watson

Chair, Retail Banking Practice

(213) 892-7938

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