## Facts

- Soundboard telemarketing technology lets an agent communicate by selecting prerecorded audio clips while remaining on the line and able to speak live.
- In 2009, FTC staff issued an informal opinion letter stating (based on a company’s description) that certain soundboard use fell outside the Telemarketing Sales Rule (TSR) limits on calls delivering “prerecorded messages” without prior express written consent.
- The staff letters expressly stated they were nonbinding staff views and did not speak for the Commission.
- After consumer complaints and reports suggested soundboard calls functioned like robocalls, FTC staff issued a new informal opinion letter on November 10, 2016.
- The 2016 staff letter stated staff’s view that soundboard technology used by SBA’s members was subject to the TSR robocall restrictions and rescinded the 2009 staff letter, with a six-month transition period.
- Soundboard Association (SBA) sued under the APA to enjoin the rescission and invalidate the 2016 letter, asserting notice-and-comment and First Amendment objections; the district court treated the letter as reviewable final agency action and entered summary judgment for the FTC on the merits.

## Issues

1. Whether the FTC staff’s 2016 informal opinion letter constitutes “final agency action” reviewable under the Administrative Procedure Act.
2. If reviewable, whether the 2016 letter amounted to an unlawful legislative rule (or a permissible interpretive rule) and whether the TSR application violated the First Amendment.

## Decision

- The D.C. Circuit vacated the district court’s judgment and dismissed the case for failure to state an APA cause of action.
- The court held the 2016 staff opinion letter was not “final agency action.”
- Because SBA pleaded its claims (including its speech claim) solely as APA challenges requiring final agency action, the suit could not proceed.
- Judge Millett dissented, concluding the letter was final agency action and the court should reach the merits.

## Legal Principles

- Under the APA, review generally requires “final agency action.”
- Under *Bennett v. Spear*, finality requires (1) consummation of the agency’s decisionmaking process and (2) an action determining rights or obligations or producing legal consequences.
- A staff opinion letter that, by regulation and by its own terms, is nonbinding and does not represent the agency’s definitive position does not consummate the agency’s decisionmaking process.
- Significant practical influence on regulated parties does not, by itself, create finality when the challenged document does not itself alter legal obligations or bind the agency.

## Conclusion

The D.C. Circuit held that a nonbinding FTC staff opinion letter changing staff guidance on soundboard technology did not qualify as final agency action, so an APA-based challenge— including a First Amendment claim pleaded through the APA—had to be dismissed.


Soundboard Ass’n v. Fed. Trade Comm’n, 888 F.3d 1261 (D.C. Cir. 2018)