The Telephone Consumer Protection Act (TCPA) governs how businesses can contact consumers through automated calls, text messages, and faxes, and two critical concepts that shape TCPA compliance strategies are Prior Express Written Consent (PEWC) and Established Business Relationship (EBR). While both provide legal pathways for contacting consumers without violating key restrictions, they serve different purposes, have distinct requirements, and offer varying levels of protection under federal telecommunications law.
For the purposes of this discussion, the law includes two main outbound contact prohibitions:
The ATDS Prohibition: Prohibits the use of an Automated Telephone Dialing System (ATDS) or a prerecorded or artificial to contact cellular numbers; and
The DNC Prohibition: Prohibits calling any number listed on the national DNC, regardless of whether it’s a cellular number or landline.
Understanding PEWC
Prior Express Written Consent represents the gold standard for TCPA compliance, providing businesses with the broadest authorization to contact consumers using automated technology. PEWC is a written agreement, bearing the consumer's signature, that explicitly authorizes a seller to deliver telemarketing messages using automatic telephone dialing systems (ATDS) or artificial/prerecorded voices.
Key Requirements for PEWC: The FCC mandates specific elements to secure valid PEWC under its TCPA regulations. The consent must include a clear and conspicuous disclosure informing consumers that they are authorizing telemarketing calls from a particular seller using automated technology or prerecorded or artificial voice, while explicitly stating that consent is not required as a condition of purchase. The agreement must specify the exact telephone number to which calls may be made and include the consumer's signature, which can be electronic through website forms, emails, keypad touches, or voice recordings.
PEWC applies specifically to marketing communications and telemarketing calls, distinguishing it from informational messages that require only prior express consent, for which the law sets a much lower bar. In addition, PEWC must be obtained without coercion and cannot be bundled with other agreements or purchase conditions.
Scope of PEWC Coverage: Valid PEWC provides comprehensive protection for businesses making telemarketing calls to both wireless and residential numbers using automated dialing systems or prerecorded messages. This includes text message campaigns, as the FCC treats SMS messages as "calls" under TCPA regulations, although some courts are starting to disagree with that assessment. Unlike other forms of consent, PEWC allows businesses to use advanced calling technologies that significantly enhance marketing efficiency while maintaining legal compliance.
Understanding Established Business Relationship (EBR)
The Established Business Relationship exemption creates a limited window for contacting consumers based on prior commercial interactions, without requiring written consent. EBR is defined as a relationship formed through voluntary two-way communication between a business and consumer, based on either a purchase/transaction within 18 months or an inquiry/application within three months of the call.
Two Types of EBR
- The 18-month transactional EBR allows businesses to contact customers who have completed purchases, rentals, leases, or financial transactions within the preceding 18 months. This relationship continues even after contract termination, as courts have ruled that canceling a service does not automatically terminate the EBR unless the consumer specifically requests to stop receiving calls.
- The 90-day inquiry-based EBR permits contact with consumers who have made inquiries or submitted applications regarding the caller’s products or services within three months of the call. This shorter timeframe reflects the more limited nature of inquiry-based relationships compared to completed transactions.
EBR Limitations and Restrictions: EBR exemptions apply only to National Do Not Call Registry violations and are strictly limited to live agent calls. The exemption does not authorize the use of automatic telephone dialing systems, prerecorded messages, or artificial voices. This fundamental restriction significantly limits EBR's practical utility in modern marketing operations that rely heavily on automated calling technology and sophisticated artificial intelligence tools.
EBR also cannot override other TCPA provisions, meaning businesses cannot use automated dialing technology to contact wireless numbers based solely on an established business relationship. The exemption becomes irrelevant for numbers not listed on the National DNC Registry, as no exemption is needed for such calls.
Key Similarities Between PEWC and EBR
Both PEWC and EBR serve as legal mechanisms for contacting consumers who might otherwise be protected from unwanted communications. They share several fundamental characteristics that make them valuable compliance tools.
- Legitimate Business Purpose: Both concepts require legitimate business relationships or interactions as their foundation. PEWC must be obtained through clear, voluntary agreements, while EBR depends on actual commercial transactions or genuine inquiries. Neither can be established through deceptive practices or manufactured relationships.
- Consumer Control Mechanisms: Both frameworks respect consumer autonomy through opt-out provisions. Consumers can revoke PEWC at any time through reasonable methods, while EBR relationships can be terminated by explicit do-not-call requests. This ensures that legitimate business interests are balanced against consumer privacy rights.
- Compliance Documentation Requirements: Successful implementation of both PEWC and EBR requires comprehensive record-keeping. Businesses must maintain detailed documentation of consent agreements or transaction records to demonstrate compliance during regulatory investigations or litigation. Proper documentation often makes all the difference when defending TCPA violation claims.
Critical Differences Between PEWC and EBR
Despite their shared compliance objectives, PEWC and EBR differ substantially in scope, application, and practical utility for modern marketing operations.
- Technology Scope: The most significant difference lies in permitted calling technology. PEWC authorizes the full spectrum of automated marketing communications, including ATDS calls, prerecorded messages, and text campaigns to both wireless and landline numbers. EBR restricts businesses to manual, live agent calls only, prohibiting any form of automation or artificial voice technology. This technological limitation makes EBR impractical for large-scale marketing operations that depend on automated systems for efficiency and cost management. Modern call centers processing thousands of daily contacts cannot rely solely on manual dialing methods covered by EBR exemptions.
- Duration and Renewal: If properly obtained and documented, PEWC can theoretically remain valid until revoked by the consumer (although this is not a recommended strategy). In contrast, EBR operates under strict time limitations: 18 months for transactional relationships and only 90 days for inquiry-based relationships. These time constraints require businesses to continuously monitor relationship dates and obtain fresh consent as EBR periods expire.
- Wireless Number Protection: PEWC provides comprehensive protection for marketing to wireless numbers using any authorized technology. EBR offers no protection for automated calls to wireless numbers, as the TCPA's cellular restrictions remain in effect regardless of business relationships. This means EBR cannot authorize the most common forms of modern mobile marketing.
Practical Implications for Business Operations
Prior Express Written Consent and Established Business Relationship represent complementary but distinct approaches to TCPA compliance. PEWC offers comprehensive, long-term authorization for automated marketing communications but requires proactive consent collection efforts. EBR provides limited, short-term exemptions for live agent calls to numbers on the National DNC based on existing commercial relationships.
Understanding these differences is crucial for developing effective compliance strategies. Businesses engaged in high-volume telemarketing should prioritize obtaining PEWC, as it provides comprehensive protection for automated marketing technologies that drive operational efficiency. PEWC's potentially indefinite duration also reduces administrative overhead compared to managing EBR expiration dates.
EBR remains valuable for businesses making occasional follow-up calls to recent customers or inquirers whose numbers are on the DNC. However, the manual calling requirement and time limitations make EBR unsuitable as a primary marketing authorization strategy.
Successful TCPA compliance strategies often incorporate both concepts, using PEWC for primary marketing operations while leveraging EBR for specific follow-up scenarios within its narrow scope. Understanding these nuances enables businesses to design communication programs that maximize marketing effectiveness while maintaining strict regulatory compliance.
