"We are here for you" + phone number gets summary judgment
- Peter Schneider
- Aug 6
- 3 min read
With ATDS claims nearly dead, text messages only fall under 47 U.S. Code § 227(c), the most common being do-not-call list violations for telephone solicitation. § 227(c) does not regulate purely informational texts, so many telemarketers try to sneak through the back door what they could not bring through the front. Such was the case of Germain v. Mario's Air Conditioning & Heating, Inc., No. 8:23-cv-671-TPB-CPT, 2025 U.S. Dist. LEXIS 149822 (M.D. Fla. Aug. 5, 2025).
Ms. Germain received two text messages purportedly on behalf of Mario's AC. The first text message said:
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.
And the second text message inquired as to whether Hurricane Ian damaged her air conditioning, and noting that Mario's AC was running 24/7 emergency service and safety inspections. This message also indicated that Mario's was "here for [her]" and included another phone number where Mario's could be reached.
Ms. Germain sued and eventually the defendants moved for summary judgment on the argument that the first text message was purely informational and not a solicitation, therefore M. Germain didn't have two text messages in a 12 month period.
A "telephone solicitation" is defined 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, which is transmitted to any person." 47 U.S.C. § 227(a)(4); 47 C.F.R. § 64.1200(f)(14). When determining whether a message is a solicitation, a court must look at its context and underlying purpose. See Lawson v. Visionworks of America, Inc., 741 F. Supp. 3d 1251, 1254 (M.D. Fla. 2024); Suescum v. Fam. First Life, LLC, No. 6:21-cv-1769, 2023 WL 311144, (M.D. Fla. Jan. 19, 2023).
The court determined that if the first text message was telephone solicitation was a question of law, but even if a question of fact, no reasonable jury could find it was not a solicitation.
Upon consideration of the text message, the Court finds that the text message at issue is a telephone solicitation that is actionable under the TCPA. 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." . . . 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."
The defendant bears the burden of consent
As to Plaintiff's request for summary judgment on the issue of whether Defendants sent the text messages without prior consent, because Defendants did not address this issue in their responses in opposition, the Court will grant summary judgment in favor of Plaintiff.
Ms. Germain didn't figure out who exactly was responsible for sending the texts.
Both WWM and SEHS argue that they are neither directly nor vicariously liable for the text messages because they did not initiate the text messages at issue. The text messages were undisputably sent, but each entity points to someone else as the culprit. As the Court explained at the hearing, the corporate structures and relationships between the parties are factually convoluted. The conflicting facts and related inferences require resolution by a jury. The motion for summary judgment is denied as to this ground.
Telemarketers are trying to skirt as close as they can with "informational" texts that are obviously telemarketing and it is nice to see an honest court take this telemarketer to task for it.
Ms. Germain had very competent counsel, so this case illustrates how telemarketers use complicated methods to hide who is legally responsible for their calls and why pro-se plaintiffs need to use a variety of methods to catch them.
Are telemarketers bothering you in Washington or Oregon? I handle TCPA lawsuits in both states and may be able to help. If you're considering action against illegal robocalls or Do Not Call list violations, reach out for a legal consultation.
📞 Call: 206-800-6000 / 971-800-6000
📧 Email: peter@nwdebtresolution.com
Note: The opinions in this blog belong to me (Peter Schneider) and do not count as legal advice. If you’re considering suing over illegal robocalls or Do Not Call violations, please contact me for a legal consultation.
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