Campaigns sometimes reach for the "established business relationship," or EBR, as a reason they can text someone, they donated, they volunteered, so surely there's a relationship. It's a real concept in telemarketing law, but for texting cell phones it's a weak reed, and relying on it instead of actual consent is a mistake. Here's what EBR is, why it doesn't do the work campaigns hope, and what to rely on instead.
What is an established business relationship?
EBR is a concept from telemarketing rules describing a prior relationship, a transaction or inquiry, that historically gave callers some latitude to contact a person. In the do-not-call and telemarketing context, an EBR could support certain calls. Campaigns hear "relationship" and assume that a donation, a signature, or past contact creates one that covers texting. The problem is that the EBR's role is narrow and context-specific, and it doesn't map cleanly onto the rules that govern texting cell phones.
Why doesn't EBR cover texting?
Because the standard for texting cell phones is about consent, not relationship. The TCPA's restrictions on texts to cell phones turn on whether the person consented, and an EBR is not the same as consent to receive texts. A voter who donated once has a relationship with your campaign, but that doesn't mean they agreed to receive text messages, which is the actual question. Treating a past interaction as text consent is how campaigns end up texting people who never opted in, the exact unconsented-contact fact pattern the rules target.
What should campaigns rely on instead?
Actual, documented consent. The reliable foundation isn't a theory about relationships; it's a real opt-in you can point to, when and how the person agreed to receive your texts. A donor or volunteer is a great person to ask for a texting opt-in, and the relationship makes them likely to say yes, but the opt-in is what you rely on, not the relationship itself. Capture text-specific consent at the point of interaction, and document it. Don't build a texting program on the hope that a past transaction substitutes for permission.
Frequently asked questions
Does an established business relationship let you text someone?
Not reliably. EBR is a telemarketing concept with a narrow role, and it doesn't substitute for consent to text cell phones, which is the standard the TCPA applies. A past donation or interaction isn't the same as agreeing to receive texts.
Can you text past donors or volunteers without a new opt-in?
You shouldn't rely on the past relationship alone. A donor or volunteer is a great person to ask for a texting opt-in, and likely to say yes, but the opt-in is what you rely on, not the relationship.
What should campaigns rely on for texting consent?
Actual, documented consent, a real opt-in you can point to, not a theory about an established relationship. Capture text-specific consent and log it.
Keep reading: cross-channel consent and what is an opt-in?. For the rules, see the FCC.
This is general information, not legal advice, current as of the date above.