CBA Record July-August 2015

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Y O U N G L A W Y E R S J O U R N A L
CBA RECORD 43
Veterans was whether an Indiana statute
that regulated all calls made using a prere-
corded or synthesized voice would prevent
an Illinois not–for–profit’s ability to make
political calls into the state of Indiana.
Because political robocalls are not regulated
under the TCPA, the plaintiff not–for–
profit sought a declaratory judgment that
the Indiana law was unenforceable against
it. More specifically, because it planned on
making all calls from outside of Indiana,
the not–for–profit argued that the TCPA
preempted the Indiana law. The Seventh
Circuit disagreed: “[i]t is clear that the
TCPA does not expressly or impliedly pre-
empt the Indiana statute and we so hold.”
So what should we learn from Patriotic
Veterans? The short version is that anyone
planning a telemarketing campaign should
understand the laws of the states in which
they plan to solicit. In Illinois, this means
understanding the Restricted Call Regis-
try Act, 815 ILCS 401/1, et. seq., which
is the principal Illinois statute regulating
telephonic solicitation. The Restricted
Call Registry Act’s definition of “telephone
solicitation” is broader than its federal
counterpart’s. While the TCPA defines
“telephone solicitation” merely as the ini-
tiation of a call or message “for the purpose
of encouraging the purchase or rental of, or
investment in, property, goods, or services,”
the Restricted Call Registry Act’s expanded
definition includes calls to encourage “the
purchase or rental of, or investment in,
property, goods, or services, or for the pur-
poses of soliciting charitable contributions.”
Compare 47 U.S.C. §227(a)(4) with 815
ILCS 401/5(e) (emphasis added). Anyone
conducting telephonic solicitations in Illi-
nois must purchase a copy of the restricted
call registry—the same do–not–call registry
established for purposes of the TCPA—at
least once a quarter. 815 ILCS 402/20.
While the Restricted Call Registry Act
does not prohibit solicitation calls by or
on behalf of not–for–profits, it imposes
significant regulations. Immediately upon
“making contact with the consumer,” a
solicitor acting on behalf of a not–for–
profit must disclose all of the following
information: (1) the caller’s true first and
last name, and (2) the name, address, and
telephone number of the organization.
815 ILCS 401/5(e)(4). The courts have
yet to determine whether “the organiza-
tion” means the not–for–profit itself or
the organization of the solicitor calling on
behalf of the not–for–profit.
Enforcement and Penalties
Failure to disclose the information required
by section 815 ILCS 401/5(e)(4) means
that the caller has made a solicitation under
the Restricted Call Registry Act and is
potentially liable for penalties. Like its fed-
eral counterpart, there are two enforcement
regimes under the Restricted Call Registry
Act. As an initial matter, an aggrieved con-
sumer may file a complaint with the Illinois
Commerce Commission, which may then
initiate administrative proceedings against
the telephonic solicitor. 815 ILCS 402/35.
However, despite the availability of admin-
istrative remedies, it seems few consumers
are taking advantage. In response to a
Freedom of Information Act request, the
Illinois Commerce Commission reported
only 31, 31, and 28 informal complaints
in calendar years 2012, 2013, and 2014,
respectively. And the vast majority of these
complaints were referred to the Federal
Trade Commission. Contrast this to the
hundreds of thousands of complaints that
the Federal Trade Commission receives
every month for TCPA violations. See
Patriotic Veterans, 736 F.3d at 1004.
The greater potential concern for tel-
ephonic solicitors is that the Restricted
Call Registry Act provides a private right
of action, and statutory damages of $500
per violation. 815 ILCS 405/50. While the
Restricted Call Registry Act’s maximum
exposure is one–third of that under the
TCPA, see 47 U.S.C. §227(b)(3), there is
the potential for significant liability in the
event of a class action.
The requirements of the Restricted Call
Registry Act should cause not–for–profit
companies, and those soliciting on their
behalf, to question whether the proverbial
juice is worth squeezing the fruit. Certainly,
the required disclosures can be a mouthful
for a solicitor trying to establish rapport
with a potential donor; however, weighed
against the potential for expensive litigation
counsel may be wise to advise their clients
to adopt a script that discloses all of the
required information up front. If experi-
ences with the TCPA are any indication of
the disdain that the plaintiffs’ bar has for
unwelcome phone calls, failing to make
required disclosures under the Restricted
Call Registry Act could start a new wave
of telemarketing litigation in Illinois.
Fitzgerald T. Bramwell is the principal at
the Law Offices of Fitzgerald Bramwell, a
litigation firm serving clients in consumer
fraud litigation, employment litigation, and
general commercial litigation in the Chicago
metropolitan area.
Opinions of Counsel
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Purpose Entities and
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We provided the Delaware
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for 55 real estate loans in 2014.
Our firm’s attorneys are also
licensed in Pennsylvania, New
Jersey, the District of Columbia,
and Washington.
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