Collector - March 2020 - 52

LASTWORD

Quality Assurance
This interview is an excerpt from a recent episode of ACA's podcast
discussing how the TCPA intersects with prerecorded messages.

W

hat happens when you mix an
automatic telephone dialing
system (ATDS) with a prerecorded
voice? That's exactly the question Leslie
Bender, chief strategy officer and general
counsel at BCA Financial Services Inc., asked
Eric Troutman, partner at Squire Patton
Boggs, during an episode of ACA Cast that
touched on a number of Telephone Consumer
Protection Act issues. This is an edited
excerpt from their conversation.
Bender: Let's say that you are satisfied, or as
satisfied as you could be, that your technology
isn't an ATDS. What happens when you
sprinkle a little artificial voice seasoning on
your communications campaign?
Troutman: I'm so glad you asked that.
People get very confused, and they think,
"Well, if I'm not using an autodialer, then
I can't be liable if I'm using a prerecorded
voice," and that's absolutely not true.
Prerecorded voice and artificial voice liability
are completely separate and apart from
ATDS calls. So, if you are using any element
of a prerecorded element to your live calls,
you are at risk. Now that doesn't mean that
you violated the statute. Here's another place
where the TCPA is extremely vague. It is
unclear whether or not a prerecorded voice
such as, "This call may be recorded for quality

52

assurance," at the outset of an otherwise live
call is going to trigger the TCPA's prerecorded
call requirements.
There was a recent case where an outbound
call by a debt servicer, it turns out, was made
by a predictive dialer, which was not going to
be treated as an ATDS in that case. However,
there was a message used as part of the dialer's
wait queue that said, "Please hold for an
important message." The court found that that
"please hold" message was a prerecorded call
within the meaning of the TCPA.
Now that holding, in my opinion, is
highly suspect.
The legislative history and, really, all of the
FCC's guidance on the subject suggests that
a call has to be wholly prerecorded in order
to trip the TCPA's restrictions on prerecorded
calls, and there's a very important petition
to the FCC right now filed by a company
called Yodel, which will hopefully clarify the
law. But for now, coming back to practical
advice, if you are not using prerecorded
voice calls, don't use them. If you are using
them, understand that you have to have prior
expressed consent for those calls.
And so, again, if you're trying to use a
prerecorded message such as, "This call
might be recorded," it's far better to just
have that agent speak those words in today's

environment until we have real clarity that
those sorts of piecemeal prerecorded elements
in a live call don't trip the statute.
To listen to the complete interview, please visit
www.acainternational.org/acacast.

TM

Podcast Title: Case Law
Developments Concerning the
TCPA and Beyond
Participants: Leslie Bender,
chief strategy officer and general
counsel, BCA Financial Services
Inc.; Eric Troutman, partner,
Squire Patton Boggs; Daniel
Delnero, senior attorney, Squire
Patton Boggs
Air date: 10/17/2019

ACAINTERNATIONAL.ORG


http://www.acainternational.org/acacast http://www.ACAINTERNATIONAL.ORG

Collector - March 2020

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