Caller Beware: Court Finds Avatar Technology Is Regulated by TCPA Corson O’Connor

Avatar technology, sometimes called “soundboard technology,” provides an interactive experience for recipients of telephone calls. Instead of simply listening to a completely pre-recorded message, recipients can answer and ask questions from an avatar, itself controlled by a real person or artificial intelligence.

This adaptable technology has become a popular alternative for telemarketers to canned messages, which are strictly regulated by the Telephone Consumer Protection Act (TCPA). In fact, there are many valid arguments as to why avatar technology should not be subject to the TCPA:

  • There is a high degree of interactivity between the recipient and the avatar, and then a response is triggered by the live agent.
  • Depending on the recipient’s responses and queries, the live agent selects different avatar-specific responses.
  • A live agent can “take over” and speak directly to the recipient at any time.
  • Avatar technology arguably facilitates better understanding and reduces confusion by removing “human error” from responses, including possible inadvertent misstatements by live agents.

… wait.

A few days ago, the U.S. District Court for the Western District of Washington decided in Williams v. PillPack, LLC, 2022 WL 17904232 (Washington, Washington, Dec. 23, 2022). While the Williams case touches on multiple certification and TCPA issues, what stands out is how the court has sloppily discussed the use of avatar technology without any discussion of nuance, even suggesting that unless defendants can provide evidence that their media campaigns would use ” dedicated live voiceā€¯, there may be a TCPA liability.

Williams continues the trend of federal courts treating avatar technology as canned messages under the TCPA. In early 2022, the U.S. District Court for the Northern District of Illinois issued an opinion in Black v. Impression Interactive, 2022 WL 169652 (ND Ill. Jan. technology'”, but relied on two other courts’ judgments granting summary judgment to plaintiffs upholding cases based on defendants’ use of soundboard technology. See Black, 2022 WL 169652, at *5 (cited in Bakov v. Consol. World Travel, Inc., 2019 WL 6699188 (ND Ill. 9 Dec. 2019); Braver v. NorthStar Alarm Servs., LLC, 2019 WL 3208651 ( WD Okla. July 16, 2019)).

The Williams case is one to watch, and we will provide updates as they become available.

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