A nonprofit organization in Alaska wants to make prerecorded telephone calls to solicit donations. The nonprofit organization wants to know if it is exempt from an Alaska statute which prohibits “using an automated or recorded message as a telephonic advertisement or a telephone solicitation.” Alaska Stat. § 45.50.475(a)(4).
Are the calls exempt from the state ban? It is too soon to tell based on first impression, and the nonprofit organization’s lawyer needs to look further, both to the statute, how it defines terms, and what is not said (or addressed) by the law.
This article will examine four types of statutory exemptions, any one of which is sufficient. We will refer to these four types as: 1) express exemptions, 2) definitional exemptions, 3) statute of limitations exemptions, and 4) jurisdictional exemptions.
Here’s a more detailed explanation of what we mean by these terms:
1) Express Exemptions. Many statutes have a section of exemptions. These sections might say, e.g. “The provisions of this part … do not apply to… [a] licensed securities, commodities, or investment broker, dealer, or investment adviser, when soliciting within the scope of his or her license ….” Fla. Stat. Ann. § 501.604(4).
The Alaska statute, however, does not specifically exempt prerecorded calls made by a nonprofit organization to solicit donations.
2) Definitional Exemptions. In addition to express exemptions, most statutes define terms used in the statute’s language. The relevant definitions in our example are “telephone solicitation” and “telephonic advertisement.” A call that does not fall within these definitions may be exempt from the statute.
Alaska does not define “telephonic advertisement.” However, “telephone solicitation” is defined as solicitation calls “encouraging the customer to purchase property, goods, or services, or make a donation.” Id. at (g)(4)(A) (emphasis added).
No luck, here, either, as the nonprofit organization’s calls do solicit a donation, and thus are included in the definition. A call which does none of these things, such as a “thank you” call, however, would be exempt, because it is not within the definition of “telephone solicitation.”
3) Statutes of Limitations. Next, laws can be limited by how long into the past they apply to illegal acts. These time limits are called “statutes of limitations.” Alaska’s applicable statute of limitations exempts actions brought more than two years after the violations occurred. Id. at § 45.50.531(f).
As the calls made by the nonprofit organization are planned for the future (not the past), a statute of limitations exemption would not apply here.
4) Jurisdictional Exemptions. Finally, statutes can be limited by which regulator is assigned to enforce the law. Some regulators, e.g. the Federal Trade Commission, state public utilities commissions, state and federal elections boards, do not have jurisdiction over some activities or groups.
In this situation, the Alaska Attorney General has jurisdiction and the power to enforce the statutes that restrict prerecorded telephone calls.
Based on the above, the nonprofit organization would not be exempt from Alaska’s prerecorded call restrictions and thus, the nonprofit organization would be prohibited from using an automated or recorded message as a telephonic advertisement or a telephone solicitation.
Note: Laws can be very detailed, and sometimes poorly or confusingly written. For these reasons, it is important to know what applies and what does not apply, because you can save much effort and expense by accurately determining both in advance of calling.
*This article was co-authored with Morgan Hepler, Intern.