Defenses / Established business relationship
The established business relationship: a narrow do-not-call defense, not a consent substitute
The established business relationship, or EBR, is the defense owners reach for when they say "but they were a customer." It is real, and it is narrow. It answers one kind of claim, the do-not-call claim based on the National Registry, and it does nothing for autodialer or prerecorded-voice claims to a cell phone. Used for the right claim with the right record it removes calls from a letter. Used for the wrong claim it removes nothing.
What it is
The FCC's rules at 47 C.F.R. § 64.1200(f)(5) define an established business relationship as a prior or existing relationship formed by a voluntary two-way communication, on the basis of either a purchase or transaction within the eighteen months immediately before the call, or an inquiry or application within the three months immediately before the call. The relationship has to be with the consumer, and it ends if the consumer asks not to be called.
A business with an EBR may call a number on the National Do Not Call Registry without violating the registry rule. That is the whole of the defense.
What it does not reach
- Autodialer and prerecorded-voice claims. Section 227(b) has no EBR exemption. A marketing call to a cell phone by autodialer or recorded voice needs prior express written consent whether or not the person is a customer. Since 2013 the same is true of prerecorded marketing calls to residential lines; the FCC removed the old EBR carve-out for those.
- Company-specific do-not-call requests. If the consumer told you to stop, the EBR is over, however recent the purchase.
- Purchased lists. A relationship is formed by the consumer dealing with you. A list bought from someone else carries no relationship.
- Affiliates. A relationship with one company extends to an affiliate only if the consumer would reasonably expect it, given the nature of the businesses and the brands.
- State claims. State telemarketing statutes define their own exemptions. Do not assume the federal EBR reads across.
The clock
Eighteen months from the last purchase or transaction. Three months from an inquiry or application. The clock runs from the consumer's act, not from your last call. A customer who bought once two years ago and never came back is out of the window. A prospect who filled in a quote form four months ago is out of the window. The dates have to be in your records, not in your memory. Each call also has its own four-year clock under the statute of limitations.
How it looks in a demand letter
Take each listed number. Identify the claim type. If it is a registry claim, check your CRM for a transaction or inquiry by that person within the window and an absence of any stop request. If both are there, the call comes off the count. If the claim is an autodialer or recorded-voice claim, the EBR is irrelevant and you need consent instead. Letters often plead both theories for the same call; the EBR removes one theory, not the call.
- The purchase, transaction, inquiry or application record for the consumer, with its date.
- Proof that the number called belonged to that consumer at the time.
- Your internal do-not-call list with timestamps, showing no request from that consumer before the call.
- The call dates, so the 18-month or 3-month window can be checked for each call.
Questions this defense raises
Our customer bought from us three years ago. Is there still an EBR?
No. The purchase window is eighteen months. A later inquiry could restart a three-month window, but the old purchase does not.
Does the EBR let us text customers with offers?
Not by itself. A marketing text to a cell phone sent by an automated system needs prior express written consent. The EBR only answers the do-not-call registry rule.
The customer bought from our sister company. Does that count?
Only if the consumer would reasonably expect the sister company’s relationship to include you. Different brands in different lines of business usually fail that test.
Can we keep calling a customer who told us to stop, because they are a customer?
No. A company-specific do-not-call request ends the EBR for calling purposes, and honoring it is its own obligation under the rules.