The short answer: yes, immediately and at significant cost. Calling a cell phone with an autodialer or prerecorded message without the recipient's prior express consent is a violation of federal law — one that creates $500–$1,500 in statutory damages per call and a private right of action that any plaintiff's attorney can pursue.
What the Law Actually Says
The TCPA (47 U.S.C. § 227(b)(1)(A)) prohibits any person from making any call — using any automatic telephone dialing system or an artificial or prerecorded voice — to any telephone number assigned to a cellular telephone service, without the prior express consent of the called party.
Three operative terms that courts have fought over for 30 years:
- Automatic Telephone Dialing System (ATDS): What equipment counts as an autodialer?
- Cellular telephone service: Which numbers are cell phones?
- Prior express consent: What proof do you need?
What Counts as an Autodialer Under TCPA
The Supreme Court resolved part of this in Facebook, Inc. v. Duguid (2021), holding that to qualify as an ATDS, the equipment must use a random or sequential number generator. A system that simply dials from a stored list is not an ATDS under this definition.
What this means for insurance agents:
- A predictive dialer that draws from a pre-loaded list is arguably not an ATDS under Duguid
- A system that generates random numbers to dial would still qualify
- However: Many state courts have interpreted Duguid narrowly. Do not assume it eliminates your TCPA exposure.
Additionally, prerecorded messages — voicedrops, robocalls, artificial voice messages — remain separately prohibited to cell phones regardless of the ATDS analysis.
Identifying Cell Phone Numbers in Your List
You cannot see from a phone number alone whether it's a mobile line, a landline, or a VoIP number. Number portability allows consumers to keep their number when switching. A (305) area code number that started as a Miami landline may have been ported to a cell phone years ago.
Courts have not recognized 'I thought it was a landline' as a complete defense.
Mobile carrier lookup verifies in real time whether a number is currently assigned as mobile, landline, or VoIP. This lookup is part of the standard verification process at cleanleads365.com/scan-my-list.
"A cell phone number can pass DNC scrubbing and still be a TCPA liability if you're using an autodialer without documented consent."
What 'Prior Express Consent' Means
For Informational Calls
For purely informational calls — policy status updates, appointment confirmations — prior express consent (oral or written) is sufficient. Giving someone your number establishes consent for related calls.
For Marketing and Sales Calls
For calls with any commercial content, the FCC's 2012 order requires prior express written consent:
- Must be in writing (electronic signatures count)
- Must clearly authorize the specific company to call at the specific number
- Must disclose that consent is not required as a condition of purchase
- Consumer must affirmatively agree — pre-checked boxes are not sufficient
The One-to-One Consent Rule (2025 FCC Update)
Effective January 2025, each company that intends to call must be individually and specifically named in the consent disclosure. Generic multi-party consent is no longer sufficient.
For agents buying leads: verify that the consent documentation names your agency specifically.
The Reassigned Number Problem
In Osorio v. State Farm Bank (2014), the Eleventh Circuit held that a company could be liable for TCPA violations even when calling a reassigned number, because the consent from the prior owner doesn't extend to the new owner.
The FCC's Reassigned Numbers Database (RND), operational since 2021, allows callers to check before dialing.
Your Defense If You're Sued
- Documented consent: Produce the specific written consent record
- Established Business Relationship: Active EBR (transaction within 18 months or inquiry within 3 months)
- TSR Safe Harbor: Written procedures, trained staff, systematic compliance process
- Equipment defense: Argue your dialer doesn't meet the ATDS definition after Duguid
The strongest position is always documented consent. For insurance agents, the cleanest posture is: buy pre-scrubbed mobile leads with verified consent documentation. And before you start dialing, check live TCPA calling hours for your state →
