A federal court in Florida granted summary judgment in favor of a plaintiff who received unsolicited text messages from an air conditioning service provider during Hurricane Ian, finding that the messages were a “telephone solicitation” in violation of the Telephone Consumer Protection Act (TCPA).
The plaintiff, whose phone number was listed on the National Do Not Call Registry, received two text messages from an air conditioning company in the aftermath of Hurricane Ian. The first message offered safety advice about turning off the air conditioning breaker during the hurricane, while the second promoted 24/7 emergency services and safety inspections.
Definition of Telephone Solicitation
The court found that even messages containing informational content can be solicitations if they have a commercial nexus or encourage the purchase of goods or services. The inclusion of phrases like “We are here for you” and a contact number was deemed to cross the line from informational to promotional, making the messages actionable under the TCPA.
The [first] text message 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.
…
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 be otherwise benign.” See Suescum, 2023 WL 311144, at *2 (quoting Mittelmark v. Yoga Joint So., LLC, No. 18-62138-CIV, 2018 WL 11460013, at *3 (S.D. Fla. Dec. 7, 2018)). Contrary to Defendants’ assertions, the text message is not purely informational and does not “merely provide[ ] safety information and advice to the plaintiff.” 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.” See Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC, 80 F.4th 466, 473 (4th Cir. 2023) (quoting Physicians Healthsource, Inc. v. Boehringer Ingelheim Pharms., Inc., 847 F.3d 92, 96 (2d Cir. 2017)).
Consent and Liability
The court granted summary judgment for the plaintiff on the issue of consent, noting that the defendants failed to provide evidence of prior express consent to send the messages. The burden was on the businesses to maintain clear records of consent for marketing communications.
However, the court denied summary judgment on the question of which defendant entity actually sent the messages, citing complex corporate relationships and unresolved factual disputes. This issue will proceed to a jury.
Germain v. Mario’s Air Conditioning & Heating, Inc., No. 8:23-CV-671-TPB-CPT, 2025 WL 2229885 (M.D. Fla. Aug. 5, 2025).
