How can I tell whether a call uses a prerecorded voice?

By what the person called hears: if the call plays a recorded voice message, it is a prerecorded-voice call, whatever the vendor calls the product. A ringless voicemail qualifies because it is a prerecorded message delivered by calling a phone number. The United States' complaint against Stratics Networks added that, despite the "ringless" label, delivering a prerecorded message to a voicemail box may trigger an audible and visual notification. FTC staff took the position that soundboard calls, where a live agent triggers recorded clips, also deliver prerecorded messages under the Telemarketing Sales Rule. The staff letter itself said its views have not been approved or adopted by the Commission and are not binding upon it.

What must a business do when a call uses a prerecorded voice?

For telemarketing, it must first hold the called party's prior express written consent, and then the message itself must identify the caller and offer an opt-out. The message must state the caller's identity at the beginning. A telemarketing message must provide an automated opt-out mechanism within two seconds of the identification. Under the Telemarketing Sales Rule, the seller must also have obtained the recipient's express agreement, in writing, before a prerecorded call to induce a purchase.

Who has to prove that the consumer consented?

The caller does. In its 2015 declaratory ruling, the FCC emphasized that if any question arises as to whether prior express consent was provided, the burden is on the caller to prove that it obtained the necessary consent. The same ruling explained that the "called party" is the subscriber, or the non-subscriber customary user of a number on a family or business calling plan, which matters when a number has been reassigned.

Can a company require consent to prerecorded calls as a condition of purchase?

No. The Telemarketing Sales Rule requires that the written agreement be obtained without requiring, directly or indirectly, that it be executed as a condition of purchasing any good or service. The Dish Network injunction repeated that condition in its own terms.

Can a consumer revoke consent to prerecorded calls?

Yes, by any reasonable method that clearly expresses a desire not to receive further calls, and the caller may not designate an exclusive means of revocation.

Does it matter whether a prerecorded call to a cell phone is informational rather than telemarketing?

It changes the form of consent, not whether consent is needed. The FCC's 2015 ruling stated that the TCPA prohibits any non-emergency call to a wireless number using an autodialer or an artificial or prerecorded voice without prior express consent. That consent must be in writing if the message is telemarketing, but it can be either oral or written if the call is informational.

Do the prerecorded-voice limits apply to debt collectors?

They may. The Final Report of the Small Business Review Panel on the CFPB's debt collector and debt buyer rulemaking notes that the Telephone Consumer Protection Act, which is implemented by the FCC, may affect some debt collection activities by restricting the use of automatic telephone dialing systems and artificial or prerecorded voice messages.

Lead GenerationTerm

Prerecorded voice

Q: Can a lead generator or calling-platform vendor be liable for a customer's prerecorded calls?

Yes, if it knows or consciously avoids knowing that the customer is violating the rule. The Telemarketing Sales Rule's assisting-and-facilitating provision, 16 C.F.R. § 310.3(b), prohibits a person from providing substantial assistance or support to a telemarketer when the person knew or consciously avoided knowing that the telemarketer was engaged in any practice that violated the rule. The United States' complaint against Stratics Networks and Netlatitude applies that standard to a ringless voicemail platform and a SIP termination service.

Berkeley Robinson, Managing Attorney at Robinson Law Firm PLLC

Author

Berkeley Robinson, Esq.

Managing Attorney, Robinson Law Firm PLLC

Berkeley has served as the go-to counsel for many scaling businesses in a transactional and litigation management capacity. Before becoming an attorney, Berkeley grew sales teams, ran online marketing campaigns, and did everything else an entrepreneur does—and still does today as the founder of two online businesses.

Definition

The government has not defined "Prerecorded voice" in a statute or regulation.

Based on our data, "Prerecorded voice" means a call that plays a recorded voice message to the person called. Source: FTC Complaint for Permanent Injunction and Other Equitable Relief (ftcrefund.com robocalls) The FCC's 2015 declaratory ruling groups prerecorded-voice and artificial-voice calls together as "prerecorded calls," a subset of the broader "robocalls" that also includes autodialed calls. Source: In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, FCC Declaratory Ruling and Order (released July 10, 2015), n.1 A ringless voicemail is one form of prerecorded message: it is delivered by calling a phone number in a way that typically does not cause the phone to ring. Source: United States v. Stratics Networks Inc., Complaint

Key legal rules

The statute and regulations set out the duties below, and the orders show what particular companies were required to do, which you can apply to your own marketing:

It is unlawful to make any call, other than one made for emergency purposes or with the prior express consent of the called party, using an artificial or prerecorded voice to the lines the statute lists, which include emergency lines, hospital and patient rooms, and numbers assigned to cellular telephone service. Source: 47 U.S.C. § 227(b)(1)(A) It is unlawful to initiate any call to a residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless one of the statute's exceptions applies, such as emergency purposes or an exemption made by rule or order of the Commission. Source: 47 U.S.C. § 227(b)(1)
A call that includes or introduces an advertisement or constitutes telemarketing, made with an artificial or prerecorded voice to those protected lines, requires the prior express written consent of the called party; the rule accepts prior express consent for calls made by or on behalf of a tax-exempt nonprofit organization. Source: 47 C.F.R. § 64.1200(a)(1)–(3)
Prior express written consent means an agreement, in writing, bearing the signature of the person called that clearly authorizes the seller to deliver advertisements or telemarketing messages using an artificial or prerecorded voice, and that states the telephone number to which they may be delivered. Source: 47 C.F.R. § 64.1200(f)(5)(i)-(ii)
A called party may revoke prior express consent, including prior express written consent, by using any reasonable method to clearly express a desire not to receive further calls, and the caller may not designate an exclusive means of revocation. Source: 47 C.F.R. § 64.1200(a)(10)–(12)
Every artificial or prerecorded voice message must, at the beginning of the message, state clearly the identity of the business, individual, or other entity responsible for initiating the call. Source: 47 C.F.R. § 64.1200(b)
A prerecorded message that includes or introduces an advertisement or constitutes telemarketing, and is delivered to a residential line or the other protected lines, must provide an automated, interactive voice- or key press-activated opt-out mechanism within two seconds of the identification. Source: 47 C.F.R. § 64.1200(b)
Under the Telemarketing Sales Rule, no one may initiate an outbound call that delivers a prerecorded message to induce the purchase of any good or service unless the seller has obtained from the recipient an express agreement, in writing. Source: 16 C.F.R. § 310.4(b)(1)(iii)(B)(2), (b)(1)(v)(A) That written agreement must be obtained only after a clear and conspicuous disclosure that its purpose is to authorize prerecorded calls, must be obtained without making it a condition of purchase, and must include the person's telephone number and signature. Source: 16 C.F.R. § 310.4(b)(1)(iii)(B)(2), (b)(1)(v)(A)

For the sake of space, this page lists only the primary rules related to this term that most businesses should follow. More may apply to your situation, and your unique facts affect how they apply.

Send us a message through our online form to talk through yours.

Send a message

Response within 24 hours

Why these rules exist

Congress found that residential telephone subscribers consider automated or prerecorded telephone calls, regardless of the content or the initiator of the message, to be a nuisance and an invasion of privacy, and it concluded that banning such calls to the home, except when the receiving party consents or in an emergency, is the only effective means of protecting consumers. Source: Pub. L. No. 102-243, § 2, 105 Stat. 2394 (1991) (Congressional Statement of Findings, note to 47 U.S.C. § 227) A recording can be played to any number of people, so the consent requirement is what keeps a single campaign from reaching consumers who never asked for it; the FTC's complaints in this area describe robocalling campaigns that reached tens of millions of consumers. Source: FTC First Amended Complaint for Injunctive and Other Equitable Relief (voice broadcasting of automobile warranty messages)

The definition matters most at the edges, where a live person is involved but the voice the consumer hears is a recording. In a 2016 letter, FTC staff revoked its 2009 approval of soundboard technology because that approval assumed the technology was a surrogate for the agent's actual voice, and, as the letter put it, a human being cannot conduct separate conversations with multiple consumers at the same time using his or her own voice. Source: FTC Staff Letter re September 11, 2009 Staff Opinion Letter on Soundboard Technology (Nov. 10, 2016) Staff concluded that calls using soundboard technology are covered by the Telemarketing Sales Rule's prerecorded call provisions because they deliver prerecorded messages. Source: FTC Staff Letter re September 11, 2009 Staff Opinion Letter on Soundboard Technology (Nov. 10, 2016)

Enforcement examples

In re Computer Business Services, Inc. (business ventures built on automatic telephone dialing systems)

In re Computer Business Services, Inc., File No. 942-3311, Analysis of Proposed Consent Order to Aid Public Comment

In the Computer Business Services matter, the FTC's complaint alleged that the respondents represented that consumers can successfully use automatic telephone dialing systems to market their businesses but failed to disclose that federal law prohibits the use of such systems in the unattended mode to initiate a call to any residential telephone line in certain circumstances. Source: In re Computer Business Services, Inc., File No. 942-3311, Analysis of Proposed Consent Order to Aid Public Comment

Outcome. Part IV of the proposed consent order would require the respondents to disclose, in close proximity to any representation about using an automatic telephone dialing system, that federal law prohibits using one to call a residential line with an artificial or prerecorded voice to transmit an unsolicited advertisement for commercial purposes without the called party's prior express consent unless a live operator introduces the message. Source: In re Computer Business Services, Inc., File No. 942-3311, Analysis of Proposed Consent Order to Aid Public Comment

United States v. Cox (voice broadcasting of prerecorded messages)

United States v. Roy M. Cox, Jr., Complaint for Civil Penalties, Permanent Injunction and Other Relief (C.D. Cal. Dec. 2011)

In United States v. Cox, the complaint alleged that the defendants sold a telemarketing service that delivers prerecorded voice messages through telephone calls, known as "voice broadcasting" or "robocalling." Source: United States v. Roy M. Cox, Jr., Complaint for Civil Penalties, Permanent Injunction and Other Relief (C.D. Cal. Dec. 2011)

Outcome. Count III alleged that on or after September 1, 2009 the defendants initiated outbound calls delivering prerecorded messages to induce purchases when the people called had not expressly agreed, in writing, to authorize the seller to place prerecorded calls to them. The prayer for relief asked for civil penalties from each defendant for every violation of the Telemarketing Sales Rule. Source: United States v. Roy M. Cox, Jr., Complaint for Civil Penalties, Permanent Injunction and Other Relief (C.D. Cal. Dec. 2011)

United States v. Dish Network, L.L.C. (satellite television telemarketing)

United States v. Dish Network, L.L.C., Amended Order for Permanent Injunction (C.D. Ill. Aug. 10, 2017)

In the Dish Network case, the United States asked for partial summary judgment on 43,100,876 prerecorded calls by the retailer Star Satellite, 6,637,196 prerecorded calls by the retailer Dish TV Now, and one prerecorded call by American Satellite, all marketing Dish products and services. Source: United States v. Dish Network, L.L.C., Opinion (C.D. Ill.) (summary judgment, Count III retailer abandoned calls) The court's opinion concluded that the United States was entitled to partial summary judgment establishing Dish's liability for those calls. Source: United States v. Dish Network, L.L.C., Opinion (C.D. Ill.) (summary judgment, Count III retailer abandoned calls)

Outcome. The amended order permanently restrains Dish from initiating or causing the initiation of any outbound call that delivers a prerecorded message unless, before making the call to induce a purchase, it has obtained the recipient's express written agreement and the call meets the order's ring, disclosure, and opt-out requirements. Source: Amended Order for Permanent Injunction, United States v. Dish Network, L.L.C. (C.D. Ill. Aug. 10, 2017) The order also makes Dish liable for its authorized telemarketers' and retailers' violations of the Telemarketing Sales Rule or the TCPA as if Dish itself had placed the calls. Source: Amended Order for Permanent Injunction, United States v. Dish Network, L.L.C. (C.D. Ill. Aug. 10, 2017)

FTC v. Educare Centre Services, Inc. (credit card interest rate reduction telemarketing)

FTC and State of Ohio ex rel. Attorney General Dave Yost v. Educare Centre Services, Inc., First Amended Complaint for Permanent Injunction and Other Equitable Relief, No. 3:19-CV-196 (W.D. Tex.)

In the Educare Centre Services matter, the complaint alleged that the defendants' telemarketing calls delivered prerecorded voice messages offering substantially lower credit card interest rates and instructing consumers to press a button on the telephone keypad to hear more. Source: State of Ohio ex rel. Attorney General Dave Yost v. Educare Centre Services, Inc., First Amended Complaint, No. 3:19-CV-196 (W.D. Tex.) It further alleged that those calls were placed without first obtaining the consumer's signed express written agreement to receive them. Source: State of Ohio ex rel. Attorney General Dave Yost v. Educare Centre Services, Inc., First Amended Complaint, No. 3:19-CV-196 (W.D. Tex.)

Outcome. Count Five of the complaint charged the Educare defendants with initiating outbound calls that deliver prerecorded messages in violation of the Telemarketing Sales Rule's written-agreement requirement. The complaint asked for relief that includes restitution, the refund of monies paid, and disgorgement. Source: State of Ohio ex rel. Attorney General Dave Yost v. Educare Centre Services, Inc., First Amended Complaint, No. 3:19-CV-196 (W.D. Tex.), Count Five

United States v. Stratics Networks Inc. (ringless voicemail platform)

United States v. Stratics Networks Inc., Complaint

In the Stratics Networks matter, the complaint alleged that Stratics Networks offered customers a ringless voicemail platform that uses phone calls to deliver prerecorded voice messages en masse to consumers, ostensibly without causing the recipient's phone to ring. Source: United States v. Stratics Networks Inc., Complaint It alleged that many of the calls Netlatitude routed and transmitted, including through Stratics Networks’ SIP termination network, delivered unlawful prerecorded messages that failed to disclose the identity of the seller, including most, if not all, of more than 136,000 robocalls it routed on just two days in September 2020. Source: United States v. Stratics Networks Inc., Complaint

Outcome. Count II alleged that Stratics Networks, Netlatitude, and an individual defendant assisted and facilitated Telemarketing Sales Rule violations by providing the ringless voicemail platform or wholesale SIP termination service to sellers or telemarketers. Source: United States v. Stratics Networks Inc., Complaint, Count II

FTC v. Yodel (soundboard telemarketing calls)

FTC v. Yodel, Complaint

In the Yodel matter, the complaint alleged that the defendants used soundboard technology that let call center agents play pre-recorded audio clips with response keys to engage consumers. Source: FTC v. Yodel, Complaint It also alleged that Yodel knew of the FTC staff's November 2016 opinion letter concluding that soundboard calls are subject to the prerecorded message provisions of the TSR. Source: FTC v. Yodel, Complaint

Outcome. The complaint further alleged that the consent websites from which the defendants obtained leads did not evidence consumers' willingness to receive prerecorded calls by or on behalf of a specific seller, as the Telemarketing Sales Rule requires. Source: FTC v. Yodel, Complaint

Exposure

Under the Telephone Consumer Protection Act, a person may, if otherwise permitted by the laws or rules of court of a State, bring an action to recover actual monetary loss from a violation or to receive $500 in damages for each violation, whichever is greater. Source: 47 U.S.C. § 227(b)(3)–(4) If the court finds that the defendant willfully or knowingly violated the subsection or its regulations, the court may, in its discretion, increase the award to not more than three times that amount. Source: 47 U.S.C. § 227(b)(3)–(4) Public enforcers have parallel tools: state attorneys general could seek injunctive relief and actual damages or $500 per violation, and could recover treble damages for willful or knowing violations, Source: United States v. Dish Network, L.L.C., Opinion (C.D. Ill. Nov. 2, 2009) (motion to dismiss) and a person the FCC determines to have violated the subsection is liable to the United States for a forfeiture penalty. Source: 47 U.S.C. § 227(b)(3)–(4)

A violation of the Telemarketing Sales Rule, which includes its prerecorded-call provisions, has been treated as an unfair and deceptive act or practice in violation of Section 5(a) of the FTC Act. Source: United States v. Dish Network, L.L.C., Opinion (C.D. Ill. Nov. 2, 2009) (motion to dismiss) Section 5(m) authorizes civil penalties for knowing violations of FTC rules. Source: United States v. Dish Network, L.L.C., Opinion (C.D. Ill. Nov. 2, 2009) (motion to dismiss) The December 2011 complaint against Roy M. Cox, Jr. and affiliated defendants, which alleged unlawful prerecorded messages sent through a voice broadcasting service, invoked figures of up to $11,000 for each violation committed on or before February 9, 2009 and up to $16,000 for each violation committed after that date; those are 2011-era amounts, not current ones. Source: United States v. Roy M. Cox, Jr., Complaint for Civil Penalties, Permanent Injunction and Other Relief (C.D. Cal. Dec. 2011) In the Dish Network matter, the amended injunction makes Dish liable for its authorized telemarketers' and retailers' violations as if Dish itself had placed the calls, so a seller cannot assume that hiring an outside caller moves the exposure to the caller. Source: Amended Order for Permanent Injunction, United States v. Dish Network, L.L.C. (C.D. Ill. Aug. 10, 2017)

The exposure extends to vendors and carriers. The Telemarketing Sales Rule's assisting-and-facilitating provision, 16 C.F.R. § 310.3(b), prohibits a person from providing substantial assistance or support to any telemarketer when the person knew or consciously avoided knowing that the telemarketer was engaged in any practice that violated the rule. Source: United States v. Dish Network, L.L.C., Opinion (C.D. Ill. Nov. 2, 2009) (motion to dismiss) In the Dish Network opinion, the court reasoned that no assistance could be more substantial or more directly connected to the core violations than paying someone to commit the acts that violated the rule. Source: United States v. Dish Network, L.L.C., Opinion (C.D. Ill. Nov. 2, 2009) (motion to dismiss) The FTC's complaint against VoIP Terminator alleged that providing VoIP services to a telemarketer constitutes substantial support and assistance under the rule. Source: FTC v. VoIP Terminator, Civil Cover Sheet and Complaint (M.D. Fla.)

FAQs

1.Plaintiff Federal Trade Commission’s Complaint for Permanent Injunction and Other Equitable Relief [PDF – 14 pages]. FTC Complaint for Permanent Injunction and Other Equitable Relief (ftcrefund.com robocalls)
2.Appendix 15-A. In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 (FCC Declaratory Ruling and Order-Released July 10, 2015) (Excerpted). In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, FCC Declaratory Ruling and Order (released July 10, 2015), n.1
3.Complaint. United States v. Stratics Networks Inc., Complaint