Established Business Relationship Exception Under the TCPA

The established business relationship exception under the TCPA lets a company place live telemarketing calls to a past customer or recent inquirer even if that person is on the National Do Not Call Registry. It runs 18 months from a purchase or payment, three months from an inquiry, and covers only live, human-operated calls. It does not authorize robocalls, prerecorded messages, or autodialed texts, and it disappears the moment the consumer asks the company to stop.

What Creates an Established Business Relationship

Federal rules define an EBR as a voluntary, two-way communication between a company and a residential subscriber that arises from either a financial transaction or a consumer-initiated inquiry.¹ Two things can trigger it:

A purchase, payment, lease, or other financial exchange between the consumer and the seller.
A consumer-initiated inquiry or application, such as a request for a quote or product information, even when no money changes hands.

The consumer has to start the contact. A cold call the recipient answers politely doesn’t create a relationship. The EBR forms from the consumer’s voluntary decision to engage.¹

How Long the Exception Lasts

The window depends on how the relationship formed.

Eighteen months after a transaction. A completed purchase, payment, or delivery gives the seller 18 months from the date of that last activity to place live telemarketing calls.¹
Three months after an inquiry. A brochure request, price quote, or application shrinks the window to three months from the date of the inquiry.²

Each new qualifying interaction resets the clock. A consumer who inquires in January and then purchases in February gives the seller a fresh 18-month window starting in February, replacing the shorter inquiry period.

The three-month inquiry window catches sellers off guard more than any other timing rule. A car dealership that takes a test-drive request in March has until June to follow up. By July, that inquiry no longer supports any telemarketing call. The business carries the burden of proving the relationship was still active when the call went out, so precise date-tracking is not optional.

What the Exception Actually Covers

This is where most of the confusion, and most of the liability, comes from. The EBR permits live telemarketing calls where a human representative speaks to the recipient. It is not a general permission slip to contact past customers through every channel.

Live Calls to Do Not Call Numbers

The core function of the exception is to override the National Do Not Call Registry for live calls. A company with a valid EBR can call a registered number with a live salesperson during the applicable window.² That is the one meaningful protection it provides.

Prerecorded Calls Are Not Covered

In 2012, the FCC eliminated the EBR exemption for prerecorded telemarketing calls to residential lines. Before that change, businesses could robocall past customers without specific consent. That loophole is closed. All prerecorded or artificial-voice telemarketing calls to residential lines now require prior express written consent regardless of any existing business relationship.³

Cell Phones and Text Messages

For cell phones, the EBR exception never applied. The TCPA has always prohibited autodialed or prerecorded calls to cell phones without the called party’s prior express consent.⁴ Selling someone a product last month does not satisfy that requirement.

The TCPA treats text messages as calls. Autodialed marketing texts to cell phones require prior express written consent, and the EBR does not substitute for it. A retailer that collected a phone number at checkout cannot legally add that number to an automated text campaign without separate written permission.

How the Exception Ends

Even inside the 18-month or 3-month window, a single sentence from the consumer kills it. If a person tells the company to stop calling, the company must honor the request immediately, and no prior transaction or inquiry overrides it.² The company must then place that consumer on its internal do-not-call list, which federal rules require it to maintain and honor for at least five years.¹

Every telemarketing call after that opt-out is a separate violation. The request doesn’t need to be in writing or follow a script. “Take me off your list” to a live caller, an email to the company, or a web form submission all count. The practical challenge is making sure the request flows from the front-line employee who heard it into the dialing system before the next campaign launches. Most enforcement actions in this area trace back to slow or broken internal processes, not deliberate defiance.

The exception also expires on its own. If the 18 months or three months pass without new activity, the relationship ends by operation of the rule, and no notice from the consumer is required.

Who Owns the Relationship

An EBR belongs to the specific seller the consumer dealt with. A different company cannot borrow it. If a consumer buys insurance from Company A, Company A’s sister brand cannot piggyback on that relationship to place its own telemarketing calls. FTC guidance says an affiliate can claim the EBR only if the consumer would reasonably expect a call from that entity, considering whether the affiliate sells similar products and whether its name resembles the original seller’s.⁵ In practice, this test is hard to pass. A mortgage lender’s affiliate selling home warranties might qualify; its affiliate selling vacation packages almost certainly would not.

Third-party callers create their own risk. A seller can be held vicariously liable under federal agency principles when an outside telemarketer violates the TCPA on the seller’s behalf. Liability can attach when the seller shares customer data, lets the firm use its trademarks, approves or writes the calling scripts, or knows or should know the telemarketer is breaking the rules and fails to intervene. And a lead-generation company cannot transfer an EBR: if you requested a quote from Company A, Company B cannot call and claim an EBR based on your interaction with Company A.²

Dual-Purpose Calls

Some businesses try to blur the line between a service call and a sales call, hoping the informational portion shields the whole conversation. It doesn’t. Under the FTC’s Telemarketing Sales Rule, a call that combines useful information with a sales pitch is not exempt. A cable company can freely call to notify a customer about a service outage, but the moment the same call transitions into an upsell for a premium package, the entire call is treated as telemarketing and must comply with Do Not Call rules.² The same logic applies to “surveys” that end with a pitch. Only calls conducted purely for research are exempt.

Business-to-Business Calls

The EBR exception is largely beside the point in B2B calling because most business-to-business telemarketing calls sit outside the Telemarketing Sales Rule entirely. The FTC exempts phone calls between a telemarketer and a business from the TSR’s requirements, including Do Not Call restrictions.⁵ One narrow exception: B2B calls selling nondurable office or cleaning supplies, such as paper, toner, and cleaning solvents, must comply with the TSR, including its Do Not Call provisions. Companies selling those products to other businesses have to apply the EBR rules as if they were calling a consumer.

Records the Business Must Keep

The burden of proving a valid EBR falls on the business, which makes documentation the front-line defense. “We’re pretty sure she bought something last year” will not hold up when a complaint or lawsuit lands. Companies should record the date and nature of each qualifying interaction, whether it was a purchase, payment, delivery, or inquiry, along with the consumer’s name, address, and phone number.⁵

Under the TSR, sellers and telemarketers must retain sales records for at least two years. Internal do-not-call lists must be maintained for five years.¹ A safe harbor from Do Not Call complaints also requires documenting the processes used to scrub calling lists against the National Registry and against the company’s internal opt-out list. A CRM that automatically flags EBR expiration dates and syncs opt-out requests to the dialer in real time is the minimum operational standard for any company doing volume telemarketing.

What Violations Cost

Exposure runs along two separate tracks, private lawsuits and government enforcement, and they can hit at the same time.

Private Lawsuits Under the TCPA

Anyone who receives a call violating the TCPA or its implementing regulations can sue in state court. The statute provides $500 in damages per violation with no need to prove actual harm. A court that finds the violation willful or knowing can triple that amount to $1,500 per call.⁴ In a campaign dialing thousands of numbers, per-call damages compound into seven- and eight-figure exposure quickly.

FTC Enforcement Under the TSR

Separately, the FTC can pursue civil penalties for TSR violations. The current maximum is $53,088 per violation, adjusted annually for inflation.⁶ If a consumer asks a company to stop calling and the company calls again, each subsequent call can trigger this penalty. Unlike the private TCPA action, FTC enforcement doesn’t require a consumer to file suit; the agency investigates and brings its own case.

State-Level Exposure

Many states have their own telemarketing statutes, and some impose stricter rules than the federal framework. A handful of states shorten the inquiry-based EBR window or don’t recognize the exception at all for certain call types. National operations have to comply with the strictest applicable law for each call, which usually means the law of the state where the consumer is located.

1
eCFR. 47 CFR 64.1200 – Delivery Restrictions
2
Federal Trade Commission. Q&A for Telemarketers and Sellers About DNC Provisions in TSR
3
Federal Register. FCC Report and Order FCC 12-21 – Rules and Regulations Implementing the TCPA
4
Office of the Law Revision Counsel. 47 USC 227 – Restrictions on Use of Telephone Equipment
5
Federal Trade Commission. Complying with the Telemarketing Sales Rule
6
Federal Trade Commission. FTC Publishes Inflation-Adjusted Civil Penalty Amounts for 2025