A Florida federal court recently denied a defendant’s motion for summary judgment in a putative class action, finding that the text message at issue was not “purely informational” but rather a solicitation for purposes of the plaintiff’s do-not-call claim. Germain v. Mario’s Air Conditioning & Heating, Inc., No. 8:23-cv-671-TPB-CPT, 2025 WL 2229885 (M.D. Fla. Aug. 5, 2025).
Shortly before Hurricane Ian’s landfall in Florida, the plaintiff received the following text:
Mario’s AC is reminding you to consider flipping off the breaker to your AC unit during a hurricane. We are here for you. [Phone Number] STOP to end.
After the hurricane’s landfall, the plaintiff received a second text message:
Did Hurricane Ian damage your AC? Mario’s AC is running 24/7 emergency service and safety inspections[.] We’re here for you! Call [Phone Number] STOP to end.
The parties agreed that the second text was a solicitation, but they disputed the nature of the first message.
The TCPA defines a “telephone solicitation” as “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services . . . .” 47 U.S.C. § 227(a)(4); 47 C.F.R. § 64.1200(f)(14). As the court explained, “When determining whether a message is a solicitation, a court must look at its context and underlying purpose.” Op. at *2. “Messages may have more than one purpose — even if a message is informational, it may also constitute telemarketing where it ultimately leads to the promotion of goods or services, even if the text may otherwise be benign.” Id.
The defendants argued that the first text was “purely informational” and merely provided “safety information and advice to the plaintiff.” But the court disagreed:
Had the message stopped after the first sentence, perhaps that would be the case. But the inclusion of “We are here for you,” along with a telephone number, serves as a pretext to commercial activity and encourages the ultimate purchase or sale of services by Mario’s AC, making the text message undisputably a solicitation. What was sent was not simply information — it was information with a “commercial nexus” to the sender’s “business.”
Op. at *2 (emphasis in original).
Separately, the court granted the plaintiff’s cross-motion for summary judgment on the issue of whether the defendants sent the text messages without prior express consent, finding that “express consent” is an affirmative defense, a defendant bears the burden of proof and there was no evidence offered to support the defense. Op. at *3 n.2.
While federal courts in Florida may eventually begin to find that the TCPA does not apply to text messages (see recent decision), in the meantime, this decision provides a helpful reminder for businesses to carefully assess the wording of text messages to ensure they are solely informational — if that is the intent. It also serves as a warning that even thoughtful and seemingly innocuous language such as “we are here for you” can potentially transform an informational message into an actionable TCPA violation.
