CBA Record

Y O U N G L A W Y E R S J O U R N A L

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

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

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 ,

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