Internal DNC Policies Not Prerequisite to Using EBR Defense, Ohio Southern District Holds

Earlier this month, the U.S. District Court for the Southern District of Ohio clarified that a TCPA defendant need not maintain an internal do-not-call list and policies in order to invoke the “established business relationship” defense for telemarketing calls to numbers on the national DNC registry. 

By way of background, the TCPA prohibits businesses from making “telephone solicitations” to phone numbers on the national DNC registry.  47 U.S.C. § 227(c); 47 C.F.R. § 64.1200(c).  However, telemarketing calls and messages can be sent to such numbers where the caller has an “established business relationship” with the recipient.  47 U.S.C. § 227(a)(4); 47 C.F.R. § 64.1200(f)(15)(ii).  The FCC has defined an “established business relationship” (“EBR”) as a “relationship formed by a voluntary two-way communication” regarding a telephone subscriber’s recent purchase of or inquiry about a product sold by the caller.  47 C.F.R. § 64.1200(f)(5).  A subscriber can terminate the EBR at any moment by making a clear and specific request for the calls and/or messages to stop.  Id. § 64.1200(f)(5)(i).  Separately, 47 C.F.R. § 64.1200(d) requires entities who place telemarketing calls to keep an internal list of individuals who have requested not to receive calls and to maintain policies to ensure that the list is honored.