Fla. court keeps TCPA case alive; Texting a 'risky venture' for companies

By John Sammon | Jul 24, 2018


TAMPA, Fla. (Legal Newsline) – The U.S. District Court for the Middle District of Florida on June 7 dismissed a motion by a defendant to dismiss a case alleging a man’s privacy rights were violated when he received texts that were marketing ploys.

“The Cline v. Ultimate Fitness Group LLC is a good illustration of the risks involved with text message marketing to consumers,” Tania Seanpanah, an associate with the law firm of Womble Bond Dickinson LLP in Los Angeles told Legal Newsline.  

The plaintiff, Christopher Cline, alleged in the complaint that the text messaging on his cellphone from the defendant Ultimate Fitness Group LLC violated provisions of the Telephone Consumer Protection Act (TCPA).

Ultimate Fitness, based in Boca Raton, Florida, does business under the name of Orangetheory Fitness and distributes and sells weight lifting equipment, treadmills, rowing machines, also locker facilities, apparel and headwear online.

Cline alleged he was previously a member of an Orangetheory Fitness Gym and had left after a few months of membership. Ultimate Fitness allegedly sent him two text messages on Sept. 18 and Oct. 6, 2017. Cline contended that both texts were made for the purpose of marketing services at a new Orangetheory Gym facility and were made without his consent, a TCPA violation.

TCPA is intended to prevent unwarranted telemarketing.

Seanpanah said the sending of text messaging by companies can be a risky venture.

“These texts are governed by the TCPA,” she said. “Non-compliant businesses can quickly find themselves at the receiving end of an expensive class action.”

In addition, Cline said the calls were made using an automatic telephone dialing system (ATDS) to send the text messages.

Ultimate Fitness moved to ask the court for dismissal of the case citing a failure to state a plausible claim for relief or facts showing the defendant had used an ATDS. 

The defendant further contended the text messages came from an actual phone number belonging to the gym’s new location and not by use of a SMS short code used for text messaging.

However the plaintiff argued that because the defendant used Texmunication, a messaging platform which provides mobile marketing services, the defendant had used an ATDS system.

Thus, the plaintiff argued that as long as the defendant used equipment with the ability to store and produce random-generated numbers and to automatically dial such numbers, the defendant was liable under the TCPA.

The court found Cline’s complaint contained enough factual matter to be accepted, the plaintiff’s complaint was sufficient to state a claim under the TCPA, and that Ultimate Fitness’s arguments were unavailing. The plaintiff had not provided consent. 

The defendant’s motion was denied.

Seanpanah recommended companies adhere closely to TCPA rules.

“It’s important to maintain robust TCPA compliance procedures and to link up with experienced outside counsel to help navigate the ever-changing legal landscape of TCPA compliance,” she said.  

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Tampa Division of the Middle District of Florida Womble Bond Dickinson

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Tania Seanpanah

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