On February 17, 2017, a district court in the Eastern District of Missouri ruled that a professional fundraiser violated the Missouri Do-Not-Call Law because it did not purchase and implement the Missouri Do-Not-Call List for calls made on behalf of nonprofits to solicit donations. Mo. ex rel. Koster v. Automated Professional Marketing, et al., No. 15-cv-01621 (E.D. Mo. Feb 17, 2017).
This is the first time the law has been interpreted to apply to professional fundraisers who make calls on behalf of nonprofits to solicit donations.
The DNC Law provides that:
No person or entity shall make or cause to be made any telephone solicitation to any residential subscriber in this state who has given notice to the attorney general, in accordance with rules promulgated pursuant to section 407.1101 of such subscriber’s objection to receiving telephone solicitations.
Mo. Rev. Stat. § 407.1098.
“Telephone solicitation” means “any voice, facsimile, short messaging service (SMS), or multimedia messaging service (MMS), for the purpose of encouraging the purchase or rental of, or investment in, property, goods or services.” § 407.1095(3).
The law provides an exemption for calls made “[b]y or on behalf of any entity organized pursuant to Chapter 501(c)(3) of the United States Internal Revenue Code, while such entity is engaged in fund-raising to support the charitable purpose for which the entity was established provided that a bona fide member of such exempt organization makes the voice communication.” Id. at (3)(c)
While the calls did not include an offer for the sale of goods or services, the court implied they were still “telephone solicitation” calls. As the calls were not made by a bona fide member of a nonprofit, the judge ruled that the DNC List applied to the professional fundraiser.
This is an error in the interpretation of the statute because calls that are not made “for the purpose of encouraging the purchase or rental of, or investment in, property, goods or services” are not “telephone solicitation” calls and thus the DNC List does not apply. The exemption for bona fide members of a nonprofit is irrelevant as it only applies to “telephone solicitation” calls, which the professional fundraiser did not make.
This ruling will encourage the Missouri Attorney General to file lawsuits against other professional fundraisers that do not purchase and implement the DNC List. While this case may be overturned, you should purchase and implement the DNC List or cease from making fundraising calls into Missouri until the issue is decided. Please contact me if you have further questions.