/>iHey TCPAWorld!
Informational texts may qualify as solicitations—the two are not mutually exclusive.
In Germain v. Mario’s Air Conditioning & Heating, Inc., No. 8:23-cv-671-TPB-CPT, 2025 WL 2229885 (M.D. Fla. Aug. 5, 2025), Plaintiff Helena Germain (“Plaintiff”), sued Defendant Mario’s Air Conditioning & Heating, Inc., (“Defendant”) under 47 U.S.C. § 227(c), for allegedly sending her two unsolicited text messages while listed on the DNC list. The matter was before the Court on cross-motions for summary judgment.
On March 29, 2024, Plaintiff filed an amended complaint naming Mario’s, SEHS Hvac Mario’s LLC (“SEHS”), and Whitwild Management, LLC (“WWM”) as defendants, and dismissed her claims against Mario’s Air Conditioning & Heating, Inc.
Id. at 2. The parties dispute whether the first text message sent constitutes a telephone solicitation that would establish a TCPA violation.
The first text message sent on September 28, 2022, reads:
Mario’s AC is reminding you to consider flipping off the breaker to your AC unit during a hurricane. We are here for you. 727-306-0182 STOP to end.
Id. at 2. The Court found this text message to be a solicitation, reasoning that messages may serve more than one purpose. “[E]ven if a message is informational, it may also constitute telemarketing[.]” Id. at 3. Here, it was the “We are here for you” language, accompanied by a telephone number, that triggered the Court into finding this to be a solicitation. These two elements together “serves as a pretext to commercial activity and encourages the ultimate purchase or sale of services.” Id. at 3. In the Court’s view, the text did not just include information, it was information with a commercial nexus to the sender’s business.
Plaintiff’s motion for summary judgment was granted.
Messages that appear purely informational can be legally considered telemarketing solicitations if they include elements that encourage commercial activity. Always review your texts for commercial intent, even when the tone is informational.
See you on the next one—TCPAWorld!
