Soundboard Association v. United States Federal Trade Commission, 254 F. Supp. 3d 7

Soundboard Association sued the FTC challenging a November 10, 2016 staff letter that treated telemarketing calls using "soundboard" technology (live agents triggering prerecorded audio clips) as subject to the FTC's robocall restriction on calls that deliver "prerecorded messages."
The district court previously held the November 2016 Letter was an interpretive rule, not a legislative rule, and therefore not subject to notice-and-comment rulemaking.
Soundboard moved for an injunction pending appeal seeking to enjoin application of the November 2016 Letter while it appeals the district court’s ruling.
The FTC staff letter applies the robocall regulation (16 C.F.R. § 310.4(b)(1)(v)) to outbound telemarketing calls that deliver a prerecorded message, as the staff interprets that term to include soundboard calls.
The Letter excludes many non-telemarketing uses of soundboard (inbound calls, political, surveys, some charitable calls); Soundboard claimed the Letter would severely harm or destroy much of the industry.
The court applied the four Winter factors (likelihood of success, irreparable harm, balance of equities, public interest), noting D.C. Circuit precedent permitting a sliding-scale approach, and denied the injunction pending appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the November 2016 Letter is a legislative rule (requiring notice-and-comment) or an interpretive rule	The robocall prohibition on calls that deliver a "prerecorded message" cannot reasonably be read to cover interactive soundboard calls; the Letter effects a substantive change and thus is legislative	The Letter interprets an existing regulation within the FTC's broad telemarketing authority and merely applies the robocall rule to soundboard calls; it does not expand the regulatory scheme	The Letter is an interpretive rule and did not effect a substantive regulatory change requiring notice-and-comment; denial of injunctive relief followed the court’s earlier merits ruling
Whether Soundboard is entitled to an injunction pending appeal	The legal question is close/ambiguous and Soundboard has a substantial case on the merits; harm to the industry is imminent and severe	The court already rejected Soundboard’s merits claim; economic harms are speculative or remediable; public interest favors enforcement to prevent abusive telemarketing	Soundboard failed to show a likelihood of success and did not carry its burden on irreparable harm; balance of equities and public interest favor allowing the Letter to take effect; injunction denied

Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) (sets the four-factor preliminary injunction standard)
Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011) (discusses sliding-scale approach for injunction factors)
Aamer v. Obama, 742 F.3d 1023 (D.C. Cir. 2014) (addresses interplay of sliding-scale and Winter requirements)
Washington Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841 (D.C. Cir. 1977) (Rule 62(c) injunction framework and standards)
U.S. Telecom Ass’n v. FCC, 400 F.3d 29 (D.C. Cir. 2005) (an agency cannot avoid APA rulemaking by labeling a substantive change an interpretive rule)
Flytenow, Inc. v. FAA, 808 F.3d 882 (D.C. Cir. 2015) (agency letter interpreting rule within its bounds is interpretive)
Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199 (2015) (agencies may change interpretations without notice-and-comment in certain circumstances)
Everett v. United States, 158 F.3d 1364 (Fed. Cir. 1998) (Auer deference and review for being "plainly erroneous or inconsistent")
Mexichem Specialty Resins, Inc. v. EPA, 787 F.3d 544 (D.C. Cir. 2015) (irreparable-harm standard requires certain, imminent, beyond-remediation injury)
Wisconsin Gas Co. v. FERC, 758 F.2d 669 (D.C. Cir. 1985) (economic loss alone usually not irreparable harm)
John Doe Co. v. CFPB, 849 F.3d 1129 (D.C. Cir. 2017) (economic harm as insufficient for irreparable injury absent threat to business existence)