Calling your own customers is usually lawful even when their numbers sit on the National Do Not Call Registry. The FCC’s rules exclude calls to people with an established business relationship from the definition of a telephone solicitation. The exemption is narrow, it expires, and the company claiming it carries the burden of proof. A business that can match each call to a dated purchase or inquiry usually has a strong answer to a Registry claim. A business relying on a customer flag usually doesn’t.
Does a past purchase create an established business relationship?
A purchase or transaction in the last 18 months, or an inquiry or application in the last three. The FCC’s definition in 47 C.F.R. § 64.1200(f)(5) describes “a prior or existing relationship formed by a voluntary two-way communication between a person or entity and a residential subscriber with or without an exchange of consideration.” The relationship must rest on “the subscriber’s purchase or transaction with the entity within the eighteen (18) months immediately preceding the date of the telephone call” or on “the subscriber’s inquiry or application regarding products or services offered by the entity within the three months immediately preceding the date of the call.”
Two features of that text decide most disputes. The clock runs to “the date of the telephone call,” so the relationship is measured call by call, not campaign by campaign. And the communication has to be “voluntary” and “two-way.” A name bought from a data broker isn’t a relationship, no matter how well it matches the customer profile.
The statute uses the same concept. The Telephone Consumer Protection Act says a telephone solicitation “does not include a call or message” made “to any person with whom the caller has an established business relationship,” under 47 U.S.C. § 227(a)(4). That’s why the exemption matters: a call that isn’t a telephone solicitation can’t violate the Registry rule.
Which TCPA claims does the exemption answer, and which doesn’t it?
It answers Registry claims. It doesn’t answer prerecorded or autodialed telemarketing claims.
The Registry rule, § 64.1200(c)(2), bars a “telephone solicitation” to a residential subscriber who has registered the number. Because an established business relationship takes the call out of that definition, it’s a defense to a claim under § 227(c)(5), the private right of action that lets a person who received “more than one telephone call within any 12-month period by or on behalf of the same entity” sue for “up to $500 in damages for each such violation.” A court may increase that to up to three times the amount if it finds the violation was willful or knowing.
The relationship doesn’t help with robocall claims. Under § 64.1200(a)(2), a telemarketing call to a cell phone “using an automatic telephone dialing system or an artificial or prerecorded voice” requires “the prior express written consent of the called party.” Paragraph (a)(3) applies the same written-consent requirement to prerecorded telemarketing calls to residential lines. Nothing in either paragraph mentions an established business relationship. A company that sends prerecorded sales calls to former customers on the strength of a recent purchase is relying on a defense that doesn’t apply.
That’s the most expensive misunderstanding in this area, and it’s worth checking before anything else. Ask what technology the campaign used. A live agent calling a customer list sits under the Registry rule, where the relationship counts. A prerecorded or AI-voice message to the same list doesn’t.
Who has to prove the relationship existed?
The caller. In United States v. Dish Network LLC, 75 F. Supp. 3d 942 (C.D. Ill. 2014), the court said “An exemption from the general rule is treated as an affirmative defense for which Dish bears the burden of proof.” After the bench trial, the court repeated the point in 256 F. Supp. 3d 810 (C.D. Ill. 2017): “The Established Business Relationship exception is an affirmative defense, and Dish has the burden of proof on this issue.”
In the trial opinion, the burden played out in Dish’s own calling data. Dish had presumed a relationship with everyone on lists of current customers and on “winback” lists of former customers, as long as the list was less than 18 months past the disconnect date. The court found that those campaign labels and disconnect dates were “not reliable evidence of a Transaction-based Established Business Relationship.”
Dish is a government enforcement case brought under the FTC’s Telemarketing Sales Rule as well as the TCPA, so it isn’t a private class action. The lesson carries over anyway. A list label is an assumption. A dated payment record is evidence.
When does the 18-month clock start?
From the last payment or transaction, not the first purchase or the account’s close. On appeal in United States v. Dish Network L.L.C., 954 F.3d 970 (7th Cir. 2020), Dish argued that the window ran from the date it disconnected service. The Seventh Circuit disagreed: “the Rule shows that DISH needed to use the last date of payment.” The court added, “This makes 18 months from the last payment the terminal date.”
That ruling interpreted the FTC’s parallel definition, not the FCC’s. The FCC text points the same way, though, because it measures from the subscriber’s “purchase or transaction.” For a subscription business, the practical answer is to store the last-payment date on every customer record and filter the calling list by it. Account status, plan tier, and former-customer flags are all proxies, and Dish shows how a court treats proxies.
The firm’s earlier post on whether consent and permission expire for dormant customers covers the separate question of stale written consent.
What ends the relationship early?
A stop request, even from a paying customer. Section 64.1200(f)(5)(i) says a seller-specific do-not-call request “terminates an established business relationship for purposes of telemarketing and telephone solicitation even if the subscriber continues to do business with the seller.” The definition also says the relationship lasts only while it “has not been previously terminated by either party.”
The relationship also stops at the corporate line. Under § 64.1200(f)(5)(ii), it “does not extend to affiliated entities unless the subscriber would reasonably expect them to be included given the nature and type of goods or services offered by the affiliate and the identity of the affiliate.” A bank customer probably expects calls from the bank’s credit card arm under the same brand. The same customer probably doesn’t expect a call from an insurance affiliate with a different name. The earlier post on do-not-call requests across affiliates and sister brands covers how the stop-request side of that rule works.
| Situation | Relationship defense available? | Record that proves it |
|---|---|---|
| Live sales call to a customer who paid within 18 months | Yes, against a Registry claim | Last-payment or transaction date for the number |
| Live call to a person who asked for a quote within three months | Yes, against a Registry claim | Dated inquiry record from the person, not a lead vendor |
| Call to a paying customer who earlier asked not to be called | No, the request ended it | Internal do-not-call list entry with date |
| Call from a differently branded affiliate | Only if the customer would reasonably expect it | Branding, shared account, and disclosures |
| Prerecorded or autodialed sales call to the same customer | No; written consent is required | Signed written consent, not purchase history |
How should a company prepare to prove the exemption?
Build the proof into the dialer, before a claim exists. The defense is call-specific, so the record has to be call-specific too: the number dialed, the date and time, and the transaction or inquiry date that was checked before the call went out. Campaign-level summaries won’t carry the burden at trial, and Dish shows that a court will discount data a company’s own witnesses can’t explain.
The safe harbor in § 64.1200(c)(2)(i) offers a second line of defense for a call that slips through by “error,” if the company has “established and implemented written procedures to comply with the national do-not-call rules” and trained its personnel. The two defenses work together. The relationship explains why most of the calls were lawful, and the safe harbor covers the ones a filter missed. The earlier post on the Registry scrub and the 31-day rule covers the scrub side of that procedure.
When a Registry demand letter names calls to past customers, these steps protect the defense:
- Put a litigation hold on the dialer and call-detail records for the claimant’s number, the consent and opt-out history, and the CRM entries showing purchases and inquiries.
- Export the internal do-not-call list with request dates, so any stop request can be placed before or after each call.
- Pull the Registry scrub files and the dates of the Registry download used for each campaign.
- Collect the scripts, the dialer configuration showing whether calls were live or prerecorded, and the vendor contracts for any outside call center.
- Have a lawyer review the file before answering the demand, calling the claimant, or offering money.
Experienced California TCPA defense lawyers will usually start with the last-payment dates, because that one field decides how many of the calls the plaintiff can count.
Questions about the established business relationship exemption
Does a free trial or a quote request create a relationship?
It can create the shorter, inquiry-based relationship. The FCC’s definition covers an “inquiry or application regarding products or services offered by the entity” within three months before the call. The person has to have made the inquiry to your company. A lead purchased from a comparison site where the consumer never named your business is weak support, because nothing in it shows the person asked about your products.
Does the exemption apply to text messages?
For Registry purposes, the FCC’s rules treat the Do Not Call protections as covering texts to wireless numbers, so the relationship can answer a Registry claim based on texts. It doesn’t answer a claim that a marketing text was sent with an autodialer without written consent. Courts also disagree about whether a text counts as a telephone call for a § 227(c)(5) claim at all, which is a separate defense worth raising.
Can a company rely on a vendor’s records to prove the relationship?
Yes, but the records have to be admissible and explainable by a witness. A call center’s summary that labels a number as an existing customer won’t do. The underlying purchase or inquiry date has to come from a business record someone can authenticate, and the vendor contract should require the call center to keep it.
Is a customer who stopped paying still in the window?
For 18 months after the last payment or transaction, if there’s no stop request. The Seventh Circuit in Dish rejected a later start date tied to the disconnect, so a company shouldn’t count the months between a missed payment and the day it closed the account.
If your company is defending a Do Not Call claim over calls to customers
If your company is accused of calling numbers on the Registry and believes the recipients were its own customers, the transaction dates and the internal do-not-call list will decide how much of the claim survives. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving telemarketing calls to current and former customers. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The statute is the Telephone Consumer Protection Act, 47 U.S.C. § 227. The FCC’s rules are at 47 C.F.R. § 64.1200, as published in the eCFR on July 1, 2026.
The court decisions are United States v. Dish Network LLC, 75 F. Supp. 3d 942 (C.D. Ill. 2014); United States v. Dish Network LLC, 256 F. Supp. 3d 810 (C.D. Ill. 2017); and United States v. Dish Network L.L.C., 954 F.3d 970 (7th Cir. 2020).
This post is general information about the Telephone Consumer Protection Act and related laws as of July 2, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.