Derek: Hi, everyone.
Derek Johnson with tatango.com.
I’m at Innovista Law here in Washington D.C.
I’m sitting with Joe Bowser, a TCPA attorney, and he’s part of the TCPA Defense Force
here at Innovista Law.
One of the questions we get asked, Joe, a lot is the concept of Established Business
Relationship.
Can you confirm that in the TCPA, the actual law, it’s says somewhere in there, “Established
Business Relationship?”
Joe: That term does appear in the TCPA.
Derek: Okay.
And I think a lot of people maybe are misusing that term or looking at it differently.
Explain why it’s in the TCPA.
Joe: It’s in the TCPA related to calls to residential lines.
Derek: Okay.
Joe: Under the DNC, the Do Not Call rules under the TCPA, and it’s there, also, in
connection with the fax rules.
But since we’re here today to talk about SMS, it doesn’t really make a lot of sense
to talk about the Established Business Relationship rules, because the EBR rules, the Established
Business Relationship, don’t apply to SMS marketing.
Derek: Okay.
Joe: So…
Derek: Marketing and sales messages, right?
Joe: Any.
Derek: Or any text messages?
Joe: Any.
Derek: Okay.
Joe: Because if you’re communicating to a mobile phone, you’re in a different set
of the TCPA rules.
So we need to get back to the rules that apply to auto-dialed calls, of any kind, of any
subject, to wireless phones.
Derek: Okay.
Joe: Right?
So there this expression, Established Business Relationship, doesn’t really have any independent
meaning.
Derek: Okay.
Joe: The important construct there about the type of relationship you have with your consumer
is about consent and consent to get out auto-dialed calls, and the level of consent that you need
depends on what you’re gonna be calling or texting them about.
Derek: Like informational messages or marketing sales messages?
Joe: Exactly.
Derek: Okay, because I think there’s a lot of confusion.
People, they see maybe Established Business Relationship, and they say, “Oh, well, I
have an established business relationship because someone, you know, gave me their business
card and, now, I feel like, because someone has told me…”
Most likely misinformed them, that they now can text message them because they have a
business, what is this?
The Established Business Relationship with them?
Joe: Right.
Derek: So that’s 100% false?
Joe: Absolutely.
Derek: Okay.
Joe: Well, assuming we’re talking about…
Derek: Text messages.
Joe: Text messages.
Right.
Derek: Yeah.
Okay.
Joe: Right.
So, the Established Business Relationship still has relevance in other areas of marketing.
Derek: For calls and faxes and…
Joe: Exactly.
Derek: Okay.
Joe: Well, cost on landlines and faxes, but if we’re gonna talk about text messaging,
let’s just put that vocabulary out of our mind because we need to get into the realm
of consent.
Derek: And that I think helps a lot of brands because I think there’s, the TCPA is pretty
long, isn’t it?
There’s a lot of content in there.
Joe: Right.
Derek: And I think if they see Established Business Relationship, they might relate it
to other things that it kind of bulk in and group things together.
Joe: Right.
Derek: And that definitely sounds like not a good thing to do.
Joe: I would agree.
Derek: Okay, that sounds good.
Okay, so, hopefully, that answers the question for SMS marketers.
Not even, does it apply?
But, Established Business Relationship, is that even something text message marketers
should be aware of or interested in?
And it doesn’t seem like it if their focus is just on text messaging?
Joe: Exactly.
It’s nice that you have an established business relationship, but we need to know what the
terms of that relationship are.
Derek: And that’s, essentially, consent.
You know, you have to receive consent, and consent cannot be a condition of purchase,
you know.
Those things are more important than this Established Business Relationship?
Joe: Exactly, because that’s a much looser standard.
Derek: Okay.
Joe: Right?
So under the Established Business Relationship, someone could have made an inquiry, right?
They could have come to your store, left their phone number, put it on a list, that does
not comply at all with the stricter standards to send them a marketing text message, right?
So…
Derek: Because at that point you do have an established business relationship with them.
Joe: Of a sort.
Derek: Yeah, because you have a business relationship, but that does not make it available that you
now can text message them.
Joe: Exactly.
I can’t go to the pizza shop, give them my phone number, right?
To say, “You can call me when the pizza is ready.”
They can’t just start texting me saying, “Here’s a sale for pizza on Tuesdays.”
Right?
Derek: I think that’s gonna help a lot of businesses out there avoid costly TCPA lawsuits
because I think a lot of people have that confused, for some reason.
Joe: Right, and that is not a hypothetical.
There is a very real household name, you know, pizza company that thought that because people
called in and ordered pizza, they could start to send them promotional messages.
Derek: They’re friends with their customers.
They knew them.
They are past customers, and that got them in trouble.
Joe: That’s just not the law.
Derek: Okay.
Again, my name is Derek Johnson with tatango.com.
I’m sitting with Joe Bowser are from Innovista Law and the TCPA Defense Force, and we, essentially,
answer the question, does established business relationships really even matter in text message
marketing.
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