Insurance Telemarketing and the TCPA: Medicare, ACA, Final Expense

Insurance sales run on the phone, and the Telephone Consumer Protection Act follows the phone. Many agencies selling Medicare, ACA, final expense, and auto coverage buy leads and use transfer call centers, sometimes with a recorded or synthetic voice opening the call. Either habit can put a call outside the agency’s consent. Damages reach $500 per violation, or up to $1,500 if a court finds the violation willful or knowing. An agency facing one of these claims often has more defenses than the demand letter lets on.

Why does insurance draw so many TCPA claims?

Volume and distance. The Eleventh Circuit has described how comparison-shopping sites for health insurance and other products sell consumers’ information to companies that then call or text them. During annual enrollment, an agency may dial thousands of numbers it got that way, through vendors it has never audited. Consent can fail at any link. Home improvement sellers face the same chain of lead sites and appointment setters, covered in our post on TCPA risk in solar and home improvement leads.

Health insurance robocalls have also drawn FCC enforcement. According to the FCC’s forfeiture order against Rising Eagle, the company “made approximately one billion health insurance-related robocalls in the first four-and-a-half months of 2019,” and the Commission assessed a $225,000,000 forfeiture for violations of the Truth in Caller ID Act. The FCC found spoofed caller ID and misleading statements about the plans being sold.

Private claims take a few shapes. A prerecorded or artificial-voice call to a cell phone or a home line without the required consent, and outside the rule’s exemptions, can support a claim under 47 U.S.C. § 227(b), where the statute provides for actual loss or “$500 in damages for each such violation,” whichever is greater. Two or more telemarketing calls by or on behalf of the same company within 12 months to a residential number on the National Do Not Call Registry, the national list of people who have opted out of sales calls, can support a claim under § 227(c)(5). Repeated telemarketing calls to a residential subscriber after a stop request can support a claim under the internal do-not-call rules.

The autodialer theory is narrow after the Supreme Court held in Facebook, Inc. v. Duguid that an autodialer needs “the capacity to use a random or sequential number generator to either store or produce phone numbers to be called.” In my view, dialers that only call numbers from a lead list fit that definition poorly.

Does a purchased lead give your agency consent to call?

Only if the consent on that lead authorizes calls from your agency. Autodialed or recorded-voice marketing calls to cell phones, and recorded-voice marketing calls to home lines, need prior express written consent. That means a signed agreement (an e-signature can qualify) that authorizes the seller to make those calls to a specific number and discloses that signing isn’t a condition of purchase. The definition in effect today requires an agreement “bearing the signature of the person called that clearly authorizes the seller to deliver or cause to be delivered to the person called advertisements or telemarketing messages,” in the version of 47 C.F.R. § 64.1200(f)(9) that predates the FCC’s 2023 changes.

Those 2023 consent changes are gone. The FCC’s 2023 order tried to require consent to “no more than one identified seller” and calls “logically and topically associated with the interaction that prompted the consent,” language the eCFR, the government’s online code, still prints in § 64.1200(f)(9) as I write this. On January 24, 2025, the FCC’s Consumer and Governmental Affairs Bureau postponed that rule, and its order states that “The previous requirements for prior express written consent in 47 CFR § 64.1200(f)(9) under the Telephone Consumer Protection Act (TCPA) will meanwhile remain in effect.” The same day, the Eleventh Circuit decided Insurance Marketing Coalition Ltd. v. FCC, holding that the FCC “exceeded its statutory authority under the TCPA.” The court granted the petition and said it would “vacate Part III.D of the 2023 Order,” the part that adopted the one-to-one and logically-and-topically requirements. So the one-to-one consent rule was vacated and never took effect. Don’t redesign lead forms around text a court threw out.

The vacatur doesn’t make every comparison-site lead good. In my view, a form pointing to a hyperlinked list of hundreds of marketing partners is where a plaintiff will aim first, so the tighter the form’s link to your agency, the better. Before buying, I’d ask the vendor to produce the form as the consumer saw it, with a timestamp and the number entered.

Aged leads raise a separate risk. The FCC’s rule doesn’t put an expiration date on written consent, but phone numbers change hands, and the reassigned-number safe harbor in § 64.1200(m) protects only a caller that checked the FCC’s Reassigned Numbers Database and got a wrong answer from it.

Who is liable when a call center transfers the prospect to your agent?

It can be the agency or carrier on whose behalf the call was made, if the call center acted as its agent. The FCC’s 2013 DISH ruling says a seller “may be held vicariously liable under federal common law principles of agency for violations of either section 227(b) or section 227(c) that are committed by third-party telemarketers.” Live-transfer programs, where a vendor screens the prospect and hands off to your licensed agent, can fit that pattern.

Do Not Call obligations follow the seller, too. Under § 64.1200(d)(3), “If such requests are recorded or maintained by a party other than the person or entity on whose behalf the call is made, the person or entity on whose behalf the call is made will be liable for any failures to honor the do-not-call request.” If a transfer vendor takes a stop request and never passes it on, the rule puts that failure on the business the call was made for, which is why the vendor contract’s notice terms matter.

Contracts can help. In Jones v. Royal Administration Services, the Ninth Circuit affirmed summary judgment for a seller of vehicle service contracts, holding that a claim of actual authority “is precluded by the express language in Royal’s contract with AAAP expressly prohibiting telemarketing methods that would violate state or federal law, including laws governing robocalls.” The court also found too little control over the manner and means of the calls. For carriers, I think that’s the frame: the first question is who controlled the calls, not the agent’s appointment status. A carrier that didn’t write the scripts, pick the leads, or choose the dialer has the argument that won in Jones.

Are recorded and AI-voice openers treated as robocalls?

Yes. Soundboard calls, where a live operator clicks through recorded clips, can count as prerecorded calls. A 2020 NorthStar ruling by the FCC’s Consumer and Governmental Affairs Bureau, addressing calls to residential lines, says “the mere presence of a live operator with soundboard technology does not negate the clear statutory prohibition against initiating a call using a prerecorded or artificial voice.” In February 2024, the FCC’s AI-voice declaratory ruling confirmed that the TCPA’s limits on an “artificial or prerecorded voice” cover “current AI technologies that generate human voices.”

For insurance marketing, § 64.1200(a)(3) bars a prerecorded or artificial-voice call to a residential line that “includes or introduces an advertisement or constitutes telemarketing without the prior express written consent of the called party.” Calls to cell phones are covered by the parallel rule in (a)(2). An established business relationship doesn’t supply that consent. My blunt view is that a synthetic-voice opener on a cold or aged list is one of the riskiest things an insurance agency can buy, because each call is its own violation and the recording file will show whether the voice was live.

Predictive dialers in transfer centers raise a separate dropped-call issue, covered in our post on the FCC’s abandoned call rule and the dialer records to keep.

What changed on April 11, 2025 for opt-outs?

The FCC’s revocation rules from its February 2024 order took effect, with one piece delayed. Under the new § 64.1200(a)(10), a consumer can revoke consent by “any reasonable method,” the seven standard words, such as stop and unsubscribe, count automatically when sent in reply to a text, and revocations must be honored “within a reasonable time not to exceed ten business days from receipt of such request.” Internal do-not-call requests under (d)(3) now carry the same ten-business-day ceiling, down from 30 days.

The delayed piece is “revoke all.” An April 7, 2025 waiver order from the FCC’s Consumer and Governmental Affairs Bureau postpones the rule “to the extent the rule requires callers to treat a request to revoke consent made by a called party in response to one type of message as applicable to all future robocalls and robotexts from that caller on unrelated matters,” and sets the new date “until April 11, 2026.” For an agency that sends policy-service robotexts and also runs marketing campaigns, that’s a year to connect the two opt-out systems, and I wouldn’t wait for the deadline.

More on defensible internal lists is in our post on internal Do Not Call policy claims.

Do Medicare marketing rules change the TCPA picture?

They add a second rulebook for Medicare Advantage sales, enforced by CMS and not through private TCPA suits.

First, CMS bars unsolicited phone outreach. Under 42 C.F.R. § 422.2264(a)(2)(iv), plans and their agents may not “Use telephone solicitation (that is, cold calling), robocalls, text messages, or voicemail messages” when the contact is unsolicited. The rule says a call isn’t unsolicited if the beneficiary consents or initiates contact, and it lets agents and brokers call clients already enrolled in other products they sell, such as auto or home insurance, though plans can’t use unsolicited calls about other lines of business to generate Medicare leads. Second, plans’ contracts with third-party marketing organizations must require them to “Record all marketing, sales, and enrollment calls, including the audio portion of calls via web-based technology, in their entirety,” under § 422.2274(g)(2)(ii). Third, since October 1, 2024, personal beneficiary data collected by a third-party marketing organization “may only be shared with another TPMO when prior express written consent is given by the beneficiary,” under § 422.2274(g)(4).

That last rule is in effect. A federal court in Texas reviewed CMS’s 2024 rule and, in a July 3, 2024 order, stayed the fixed-fee compensation and contract-terms provisions, stating that “The Court STAYS the effective date of the Fixed Fee and Contract-Terms Restriction in the Final Rule.” The court declined to stay the data-sharing consent requirement, finding the challenger hadn’t shown a likelihood of success on that claim. The case is still pending.

A CMS violation isn’t a TCPA violation by itself. But a plaintiff can ask for the recordings CMS requires in discovery, and I’d tell any Medicare agency they cut both ways. A recording of a prospect asking for a call may be an agency’s best consent evidence. A recording that opens with a soundboard clip can become the plaintiff’s best exhibit.

Insurance calling claims at a glance

A private Do Not Call claim requires “more than one telephone call within any 12-month period by or on behalf of the same entity,” and § 227(c)(5) gives an affirmative defense to a company that “has established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitations in violation of the regulations.” In my view, the defense is won or lost on paper: written scrub procedures, training records, and a current Registry download. The federal Telemarketing Sales Rule adds its own recordkeeping duties for telemarketers, which we compared in Telemarketing Sales Rule vs. TCPA.

The first week after an insurance call claim arrives

1. Put the dialer, transfer vendor, and CRM data on a litigation hold, and pull the call records and consent records for the claimant’s number.
2. Export every opt-out tied to the number, with dates, including verbal requests on recorded calls and internal do-not-call entries.
3. Retrieve the Registry scrub logs and the version date of each download used.
4. Gather lead purchase records and vendor and transfer agreements, along with scripts and every soundboard or AI-voice file used.
5. Speak with counsel before you answer the demand, reach out to the person who got the calls, or offer anything to settle.

The firm’s TCPA defense lawyers page summarizes how claims involving purchased insurance leads and live-transfer telemarketing are defended.

Questions insurance agencies ask about telemarketing claims

Can we call a final expense lead that’s two years old?

The FCC’s rule puts no expiration date on written consent. The risks are practical. The number may have been reassigned, the consent may not name your agency, and the vendor may no longer be able to prove the form existed. Before dialing, I’d check the Reassigned Numbers Database, confirm the consent record can be produced, and scrub against the Registry and your internal list.

Can a live agent call a lead whose number is on the Do Not Call Registry?

Yes, with the right paperwork. The Registry rule exempts a caller with the consumer’s permission in a signed, written agreement with the seller that says the consumer agrees to be contacted by that seller and lists the number. A form that never names your agency is a poor fit. An inquiry to your own agency in the past three months also opens a window, unless the person has since asked you to stop.

Do the April 2025 opt-out rules apply to our service texts?

Yes, if those texts rely on the customer’s consent. The revocation rules cover consented robocalls and robotexts, whether the content is service or marketing. Reply words such as STOP and cancel count automatically, and you have no more than ten business days to honor them. Until April 11, 2026, an FCC Bureau waiver delays the requirement to treat a stop in response to one type of message as ending unrelated robocalls and robotexts.

When an insurance call campaign draws a lawsuit

If your agency or carrier is accused of making recorded-voice sales calls or calling numbers on the Do Not Call Registry, the lead consent records and the vendor contracts often decide how the case comes out. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving purchased insurance leads and live-transfer telemarketing. Contact Rosenberger + Kawabata online for a free and confidential consultation, or call (310) 894-6921.

Sources

The statute is the Telephone Consumer Protection Act at 47 U.S.C. § 227. The FCC’s rules are at 47 C.F.R. § 64.1200, as published in the eCFR on May 7, 2025. The earlier consent definition is in the December 1, 2023 version. CMS’s marketing rules are at 42 C.F.R. § 422.2264 and 42 C.F.R. § 422.2274, as published on May 7, 2025.

The FCC documents start with the 2013 DISH declaratory ruling (FCC 13-54) and the NorthStar soundboard ruling (DA 20-1507, Dec. 18, 2020). The Rising Eagle forfeiture order is FCC 21-35 (Mar. 18, 2021). The AI-voice declaratory ruling is FCC 24-17 (Feb. 8, 2024), and the revocation order is FCC 24-24 (Feb. 16, 2024). The order postponing the one-to-one rule is DA 25-90 (Jan. 24, 2025), and the revoke-all waiver is DA 25-312 (Apr. 7, 2025).

The court decisions are Facebook, Inc. v. Duguid, 592 U.S. 395 (2021); Insurance Marketing Coalition Ltd. v. FCC, 127 F.4th 303 (11th Cir. 2025); Jones v. Royal Administration Services, Inc., 887 F.3d 443 (9th Cir. 2018); and Americans for Beneficiary Choice v. U.S. Department of Health and Human Services, No. 4:24-cv-00439-O (N.D. Tex. July 3, 2024) (order on motions for stay).

This post is general information about the Telephone Consumer Protection Act and related laws as of May 7, 2025. 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.