The Established Business Relationship Exemption
Sellers and telemarketers may place live telemarketing calls from a sales agent (but not automated calls or robocalls) to a consumer with whom a seller can demonstrate it has an established business relationship, provided the consumer has not asked to be on the seller’s entity-specific Do Not Call list. One is based on the consumer’s purchase, rental, or lease of the seller’s goods or services, or a financial transaction between the consumer and seller, within 18 months preceding a telemarketing call. The 18-month period runs from the date of the last payment, transaction, or shipment between the consumer and the seller. The other is based on a consumer’s inquiry or application regarding a seller’s goods or services, and exists for three months starting from the date the consumer makes the inquiry or application. This enables sellers to return calls to interested prospects even if their telephone numbers are on the National Registry.
A magazine seller may make a live telemarketing call to a customer whose number is on the National Registry for 18 months after the date of the customer’s last payment for magazines or for 18 months after the seller’s last shipment date of magazines, whichever is later.
A consumer calls a company to ask for more information about a particular product. If the company returns the consumer’s call within three months from the date of the inquiry, whether the consumer’s telephone number is on the National Registry is immaterial. But after that three month period, the company would need either the consumer’s express agreement to get more calls or a transaction-based established business relationship to support more calls.
To whom does the established business relationship apply? An established business relationship is between a seller and a customer; it is not necessarily between one of the seller’s subsidiaries or affiliates and that customer. The test for whether a subsidiary or affiliate can claim an established business relationship with a sister company’s customer is: would the customer expect to receive a call from such an entity, or would the customer feel such a call is inconsistent with having placed his or her number on the National Do Not Call Registry?
Factors to be considered in this analysis include the nature and type of goods or services offered and the identity of the affiliate. Are the affiliate’s goods or services similar to the seller’s? Is the affiliate’s name identical or similar to the seller’s? The greater the similarity between the nature and type of goods sold by the seller and any subsidiary or affiliate and the greater the similarity in identity between the seller and any subsidiary and affiliate, the more likely it is that the call would fall within the established business relationship exemption.
A consumer who purchased aluminum siding from “Alpha Company Siding,” a subsidiary of “Alpha Corp.,” likely would not be surprised to receive a call from “Alpha Company Kitchen Remodeling,” also a subsidiary of “Alpha Corp.” The name of the seller and the subsidiary are similar, as are the type of goods or services offered – home repair and remodeling.
If a consumer buys a computer with peripherals – printer, keyboard, speakers – from a local retail store, the consumer will have an established business relationship with that store for 18 months from the date of purchase. In addition, the consumer may have an established business relationship with the computer manufacturer and possibly the manufacturer of the peripherals, as well as the operating system manufacturer, as long as the customer has a contractual relationship with any of these entities. If the printer comes with a manufacturer’s written warranty, the manufacturer of the printer has an established business relationship with the customer. If the operating system comes with a manufacturer’s written warranty, the manufacturer of the system has an established business relationship with the customer, too.