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Y O U N G L A W Y E R S J O U R N A L
42
JULY/AUGUST 2015
WHY NOT-FOR-PROFITS MAY NOT CALL INTO ILLINOIS WITH IMPUNITY
Careful Who You Call
By Fitzgerald T. Bramwell
W
e have all been there: you drop
what you’re doing to run to
answer a phone call only to
have a solicitor try to get you to donate
money to some “good cause.” Charity is a
virtue, of course. But an ill–timed phone
call can make even the most sympathetic
recipient see red. What if, for example,
the telephone subscriber had just put a
child down for a nap and the phone call
woke her up? Moreover, given the pro-
liferation of for–profit fundraisers—
i.e.,
for–profit companies that call on behalf of
the not–for–profit and that take the lion’s
share of any donation made—how much
good are these solicitors actually doing?
Too often, when a consumer challenges a
not-for-profit solicitor, that solicitor offers
the functional equivalent of a verbal shrug
and merely states that the call is not illegal.
But when it comes to activity in Illinois,
that apathetic response is only half right.
The federal Telephone Consumer
Protection Act of 1991 (the “TCPA”)
represented a first major step with respect
to restricting unwanted solicitation calls.
Principally, the TCPA restricts junk faxes,
calls to cell phones, and telephonic solicita-
tions made by for–profit corporations.
See
generally
47 U.S.C. §227(b), (c). Case law
has expanded the plain language of the
TCPA to protect against unwanted solici-
tation via text message
. See, e.g., Gomez
v. Campbell-Ewald Co.,
768 F.3d 871
,
874 (9th Cir. 2014). Because the TCPA
provides a private right of action and statu-
tory damages to aggrieved consumers, 47
U.S.C. §227(b)(3), (c)(5), there has been
a significant amount of TCPA litigation
over the past several years
.
The TCPA’s
current regulations, however, generally
exempt not–for–profit companies and enti-
ties calling on their behalf.
See
47 C.F.R.
§64.1200(a)(2), (3).
If federal law provided the only regula-
tory regime, solicitors acting on behalf
of not–for–profits could rest easy. But as
the Seventh Circuit recently explained,
the TCPA is not the only game in town.
See Patriotic Veterans v. Indiana
, 736 F.3d
1041 (7th Cir. 2013). At issue in
Patriotic