An EBR under the TCPA lets you call a consumer without prior consent only if you sold, rented, or leased a product within 18 months of the call, or if the consumer inquired within 3 months. The exemption covers landline autodialed calls; wireless numbers, prerecorded voices, or third‑party affiliates immediately require consent. Do‑Not‑Call request or rescinded transaction terminates the exemption. Scrub each number against the National DNC registry, keep audit trails, and you’ll find compliance is essential.

Key Takeaways

• EBR only covers landline autodialed calls; wireless, prerecorded, or third‑party calls must have prior consumer consent.
• The 18‑month window begins at the last purchase, delivery, or payment; the 3‑month window starts at the inquiry date.
• A do‑not‑call request, transaction rescission, bankruptcy, or business shutdown terminates the EBR, voiding the exemption.
• Once the EBR expires, any autodialed call requires written, prior consent; EBRs cannot be renewed by subsequent calls.
• Systems that automatically store or generate numbers qualify as autodialers under §227(b)(1)(B), requiring annual EBR verification.

What Is an Established Business Relationship (EBR) Under the TCPA?

What precisely constitutes an Established Business Relationship (EBR) under the TCPA, and why is it critical for your compliance efforts? The term stems from the 1991 TCPA and FCC codification at 47 CFR § 64.1200(f)(6). An EBR forms when you, the consumer, purchase, rent, or lease goods or services from a business within 18 months before a telemarketing call, or when you make an inquiry or application about their offerings within 3 months. This definition grants a narrow exemption that removes the need for prior written consent on landline autodialed calls, but it does not cover wireless numbers, prerecorded voices, or third‑party affiliates. The exemption’s legal limits prevent you from transmitting messages if you’ve requested to be placed on the internal do‑not‑call list or if the transaction was rescinded. Understanding this Definition clarity and recognizing the legal limits help you structure calls, maintain lists, and avoid costly liability penalties.

How Long Is an EBR Valid for Telemarketing?

Although the TCPA itself leaves a consumer‑business relationship’s expiry open, the FCC treats it as a facts‑and‑circumstances matter that hinges on the last transaction or inquiry. You must consider the 18 Month Rule, starting at the last purchase, delivery, or payment and lasting 18 months. An inquiry invokes the 3 Month Window, starting on the inquiry date, and lets you call only about that product. Both periods end when the consumer files a do‑not‑call request, declares bankruptcy, or stops business activity. If either period lapses, you need written consent before any autodialed call. Below is a concise visual matrix to guide compliance.

Use table to maintain.

Why Autodialers Break the EBR Exemption

Given your grasp of the 18‑month rule, you’ll see that autodialers immediately negate the EBR exemption—because any system that can auto‑dial a list without human intervention falls squarely within the FCC’s definition of an autodialer.

The 2015 *Facebook v. Duguid* ruling classifies any equipment that can store or produce numbers through a random or sequential generator as an autodialer, even when you merely sequentially count a pre‑loaded list. Therefore, any modern software that auto‑dials a stored list is subsumed under the expanded Dialer Definitions, regardless of its original manual‑dialing intent. The EBR exemption under § 227(b)(1)(B) bars autodialed or prerecorded calls to wireless numbers, even with a prior transaction; the exemption survives for landlines only when no revocation has occurred. Because an autodialer’s operation removes human control, the TCPA’s 2013 rulemaking mandates prior, written, signed consent for each call to a cell phone, closing any Consent Loopholes strictly unconditionally.

How to Handle DNC Registry Conflicts in an EBR Campaign

Because any dialer that auto‑dials a number on the national DNC registry without prior express written consent violates the TCPA, you must first scrub your contact list against the registry before initiating any outreach. Perform a DNC Scrub immediately before launching your business relationship (EBR) campaign to flag conflicts. Conduct a Compliance Check to cross‑reference each number against the National DNC Registry, confirming whether the consumer is listed. For every flagged number, verify the existence of a valid EBR and the date of the last purchase, inquiry, or payment. If the EBR expires or the call would use an autodialer or prerecorded voice, you must obtain express written consent. If consent cannot be secured, add the number to your DNC list and cease all further outreach. Maintain records of the DNC Scrub, the EBR verification, and any consents for two years to satisfy regulatory audit requirements and enforce.

Document Your EBR for TCPA Compliance

When you establish an EBR through a consumer’s transaction or inquiry, you’ve got to keep an unambiguous record that lists the exact date, the product or service involved, the phone number, and the channel (in‑store, online, phone) by which the relationship arose.

1. Record every transaction and inquiry in a designated Log Format that captures date, product, channel, and phone number, and store it in an immutable Audit Trail.
2. Continuously update the expiration counter; flag any record 18 or 24 months before its statutory deadline to avoid post‑EBR calls.
3. Verify that the recorded dates align with real consumer activity; mismatched entries invalidate your defense in enforcement scrutiny.

Maintaining this Audit Trail in a standardized Log Format guarantees audit readiness and supports defense in potential FCC litigation. Should discrepancies arise, promptly reconcile records and document remedial actions, preserving chain of custody through archival systems and be auditable.

Frequently Asked Questions

Does a Single Online Inquiry on a Company’s Website Constitute an EBR?

Yes, a single online inquiry on a company’s website typically establishes an EBR, provided the inquiry is specific or a Web Query that submits contact information. Under the TCPA, a Site Inquiry qualifies if it occurs within the last 18 months and contains a consumer‑initiated request for product or service. The 3‑month window from submission begins upon receipt of your data, and opt‑outs must be honored immediately in compliance today.

Is an Email Reply From a Sales Rep Considered Two‑Way Communication for EBR?

Picture a gatekeeper weighing each passing traveler’s footsteps. In this court, a single email reply from a sales rep is a lone footfall, not a procession. Consequently, it does not form a two‑way communication that resets the EBR lock. You need a back‑and‑forth exchange—matching steps—to establish the required dialogue. Email tone and reply frequency help prove mutual engagement under TCPA rules. To secure compliance with statutory safeguards for all outreach.

Can a Limited‑Time Free Trial Usage Establish an EBR for Future Calls?

Surely you’ll find that a limited‑time free trial does not, by itself, create an EBR that grants future call rights. Unless the consumer completes a purchase or otherwise affirms intent during the trial, the FCC treats the engagement as an inquiry, granting a narrow, three‑month exemption. Trial terms that auto‑renew or require onerous cancellation can undermine that expectation, and any post‑trial calls risk violating the TCPA, for your liability today.

Does Chat Support With a Customer Create an EBR for Telemarketing?

Like a shadow that follows a brief dance, chat support with a customer doesn’t automatically birth an EBR for telemarketing. According to the TCPA, support transcripts must be substantive, customer‑initiated, and intent‑bearing. In your case, a low‑level troubleshooting chat or a single inquiry fails to meet the “meaningful exchange” standard; it yields no exemption for future sales calls. If you summarize it in chat logs, the FCC strictly requires context.

Are Calls to a Consumer Who Has Opted‑Out From Internal DNC Exempt Under EBR?

You can’t rely on EBR to justify calls to a consumer who has opted‑out from your internal DNC. That opt‑out constitutes a revocation of consent status, rendering any subsequent marketing call unlawful. Under TCPA §64.1200(f)(6) and §227(c)(5), the opt‑out exemption takes precedence, and calling such a consumer triggers statutory damages. Always scrub your internal DNC before launching campaigns in compliance with the FCC’s enforcement directives and avoid costly litigation swiftly.

Conclusion

If you maintain a documented EBR and strictly enforce DNC registry checks, you mitigate exposure to TCPA penalties. The FTC’s 2023 enforcement report shows that 85% of fines target businesses lacking verifiable EBRs. By ensuring your autodialer usage complies with the EBR window, you reduce liability risk and guarantee regulatory alignment. Remember, a rigorously updated EBR protocol is a cornerstone of defensible compliance, and maintain audit trails for each communication to demonstrate ongoing evergreen compliance.

James Bateson

Lawyer