Dan Blynn published "D.C. Circuit Ruling Lets FTC Decide … Without Deciding" in Response Magazine on May 22, 2018. Here's an excerpt of the article:
In a blow to the soundboard industry, the D.C. Circuit Court of Appeals recently ruled – in Soundboard Association v. FTC – that the Federal Trade Commission's (FTC) November 2016 opinion letter, which reclassified soundboard technology as "robocalls" under the Telemarketing Sales Rule (TSR), is not subject to judicial review.
Soundboard technology allows telemarketers to communicate in real-time, dynamic, two-way conversations utilizing pre-recorded audio clips. These differ from the type of pre-recorded message contemplated by the drafters of the TSR in that there is a live agent monitoring the call and selecting the appropriate clip depending on the situation. The FTC's 2016 opinion letter rescinded a 2009 letter that concluded that calls made with soundboard technology are not subject to the same restrictions as robocalls under the TSR.
The issue before the D.C. Circuit, however, was procedural: whether the Association would be able to challenge this new interpretation of the law, which effectively shuts down the entire soundboard industry. The merits of the soundboard practice were not at issue.