Open enrollment for 2027 coverage on the federal Marketplace starts November 1, and for ACA brokers and the call centers behind them, the season brings a spike in outreach and in TCPA claims. Most of those claims turn on whether the consumer agreed to the call and whether the number was on the Do Not Call Registry. A broker facing one of these claims usually has more defenses than the demand letter suggests, but only if the consent records exist.
Why does open enrollment bring TCPA claims?
Heavy call volume on a short deadline, much of it to leads bought from someone else.
Open enrollment on the federal exchange opens November 1 and will “end on January 15, 2027,” according to a July 31, 2026 CMS statement on a court order affecting the 2027 Marketplace rules. That gives brokers about ten weeks, with the heaviest volume near the deadlines. Deadline pressure pushes agencies to dial faster, and dialing faster is how scrubs get skipped and leads get called before anyone checks where they came from.
Much of that dialing runs on purchased leads from comparison sites and aggregators. Consent collected by a lead seller is only as good as the form the consumer filled out and the records the seller kept, a problem covered in more depth in the firm’s post on buying leads and TCPA consent records.
Does CMS consent documentation count as TCPA consent?
No. They’re separate permissions for separate purposes, and mixing them up is one of the easier mistakes to make.
CMS requires agents and brokers on the federal platform to “Obtain and document the receipt of consent of the consumer” before “assisting with or facilitating enrollment through a Federally-facilitated Exchange,” under 45 C.F.R. § 155.220(j)(2)(iii). The documentation “must include a description of the scope, purpose, and duration of the consent,” the date, and the name of the agent or agency being granted consent, under the same rule.
That consent lets a broker work on a consumer’s application. It doesn’t authorize marketing calls. Prerecorded or artificial-voice telemarketing calls need prior express written consent, which the FCC defines as “an agreement, in writing, 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 using an automatic telephone dialing system or an artificial or prerecorded voice,” under 47 C.F.R. § 64.1200(f)(9). The written agreement also needs its own disclosures.
The practical fix is a single intake flow that captures both, each in its own words, with the CMS consent record and the TCPA consent record stored side by side. A broker who can produce only the CMS form in a TCPA case has a gap that plaintiffs’ lawyers know to look for.
Which calls and texts need consent, and what kind?
It depends on the technology and the number called.
Recorded or AI-voice sales calls to cell phones. The rule bars any call “that includes or introduces an advertisement or constitutes telemarketing, using an automatic telephone dialing system or an artificial or prerecorded voice,” to a cell phone without prior express written consent, under § 64.1200(a)(2).
Recorded or AI-voice sales calls to home phones. The same written consent is required for a call “to any residential line using an artificial or prerecorded voice to deliver a message that includes or introduces an advertisement or constitutes telemarketing,” under § 64.1200(a)(3).
Live calls and texts to numbers on the Do Not Call Registry. A live agent doesn’t need written consent, but can’t make telephone solicitations to a residential subscriber on the national Registry, the federal list of people who’ve opted out of sales calls, under § 64.1200(c)(2), unless an exception applies. The FCC applies the Registry rules to “telemarketing calls or text messages to wireless telephone numbers,” under § 64.1200(e), though courts have split on whether texts give consumers a private claim under these rules.
The most useful exception for brokers is the established business relationship. It covers a consumer’s purchase or transaction “within the eighteen (18) months immediately preceding the date of the telephone call” or an “inquiry or application regarding products or services offered by the entity within the three months immediately preceding the date of the call,” under § 64.1200(f)(5). Last year’s enrollees are often still inside that window, but the relationship is with the agency that enrolled them, not with whoever bought their data later.
Autodialed calls. The autodialer claim is narrow. The Supreme Court held in Facebook, Inc. v. Duguid that a qualifying system must have “the capacity to use a random or sequential number generator to either store or produce phone numbers to be called.” Dialers that call a list of leads usually don’t qualify, which is why recorded voices and the Registry drive most claims.
Does the health care message exemption cover ACA marketing?
Brokers shouldn’t count on it.
The exemption reaches a call that delivers a “health care” message made by or on behalf of a “covered entity” or its “business associate,” as HIPAA defines those terms, under § 64.1200(a)(2). A pitch to compare and buy plans through an agency is a sales call, and an independent broker often isn’t a HIPAA covered entity at all. The firm’s post on the TCPA health care exemption walks through where the line falls.
What does a lead buyer’s consent defense depend on?
The paperwork the lead seller kept, and whether it names the broker.
The FCC’s 2023 rule that would have limited each consent to a single seller never took effect. The Eleventh Circuit vacated it in January 2025 in Insurance Marketing Coalition Ltd. v. FCC, as covered in the firm’s post on the one-to-one consent rule. That helps, but it doesn’t save a consent form that never identified the broker or that the consumer can credibly deny submitting.
A broker buying leads should ask for the full consent record before dialing: the form language, time stamp, IP address, and any session recording. If the seller won’t provide those on request, the broker will have trouble getting them after a lawsuit is filed.
Exposure and defenses at a glance
| Claim theory | Rule | Exposure per call or text | Defenses that answer it |
|---|---|---|---|
| Recorded or AI-voice sales call to a cell phone | 47 U.S.C. § 227(b); 47 C.F.R. § 64.1200(a)(2) | $500, or up to $1,500 if willful or knowing | Prior express written consent, health care message exemption where it fits |
| Recorded sales call to a home line | 47 C.F.R. § 64.1200(a)(3) | $500, or up to $1,500 if willful or knowing | Prior express written consent |
| Calls or texts to a Registry number | 47 C.F.R. § 64.1200(c)(2); 47 U.S.C. § 227(c)(5) | Up to $500, or up to $1,500 if willful or knowing | Established business relationship, signed written permission, safe harbor for documented procedures, texts-as-calls split |
| Autodialed calls | 47 U.S.C. § 227(b)(1)(A) | $500, or up to $1,500 if willful or knowing | Duguid’s definition, prior express consent |
The private Do Not Call claim requires “more than one telephone call within any 12-month period by or on behalf of the same entity,” under 47 U.S.C. § 227(c)(5), and a court may increase an award if it finds the violation was willful or knowing.
Before and after a claim arrives
- Put a litigation hold on dialer logs, text platform data, call recordings, and the consent record for every number involved.
- Pull the internal do-not-call list and opt-out history, with the date each request was honored.
- Pull the Registry scrub records and the version dates used for each open enrollment campaign.
- Collect the lead-seller and call-center contracts, along with scripts and any recorded or AI-voice message files.
- Talk to a lawyer before answering a demand letter, calling the consumer back, or offering a payment.
Agencies that use transfer call centers should also confirm who placed each call, since vicarious liability often decides these cases. The firm’s California TCPA defense page explains how demand letters and class actions against insurance sellers usually unfold.
Questions ACA brokers ask about calling and texting
Can we call last year’s enrollees during open enrollment?
Usually, if they enrolled through your agency. An enrollment is a transaction that creates an established business relationship for 18 months, which covers live calls to Registry numbers. It doesn’t cover recorded or AI-voice sales calls, which still need written consent, and it ends the moment the consumer asks you to stop calling.
Is a CMS consent form enough to text a consumer about plans?
No. The CMS form documents permission to help with enrollment. Marketing texts raise their own consent and Do Not Call questions under the TCPA, and the CMS form wasn’t written to answer them. Capture TCPA consent separately, in plain language, with the consumer’s number and your agency’s name.
Are we liable for calls our lead vendor or call center made?
You can be. Courts apply agency principles, and a broker that controls scripts, accepts transfers, or ratifies a vendor’s conduct can end up answering for its calls. Contracts that require compliance, audit rights, and prompt production of consent records help. The firm’s post on insurance agency telemarketing covers the transfer-call model in more detail.
Does it matter that open enrollment is a deadline consumers want to hear about?
Not legally. A reminder can still be telemarketing if it encourages a purchase, and good intentions aren’t a defense. A purely informational message to an existing client about a deadline is easier to defend than one that pitches new plans, so keep the two separate.
Defending an ACA telemarketing claim
If your agency has been sued or received a demand letter over open enrollment calls or texts, the consent records and transfer logs from this season will decide much of the case. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving prerecorded insurance sales calls. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The statute is 47 U.S.C. § 227. The FCC’s rules are at 47 C.F.R. § 64.1200. The CMS consent rule is 45 C.F.R. § 155.220, and the open enrollment dates come from a July 31, 2026 CMS statement. The cases are Facebook, Inc. v. Duguid, 592 U.S. 395 (2021), and Insurance Marketing Coalition Ltd. v. FCC, No. 24-10277 (11th Cir. Jan. 24, 2025).
This post is general information about the Telephone Consumer Protection Act and related laws as of October 3, 2026. 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.