In Suriano v. French Riveria Health Spa, Inc., Civ. No. 18-9141, 2018 WL 6702749 (E.D. La. December 20, 2018), Judge Lemmon found that text messages were information only and not advertisements. Therefore, the sender did not violate the TCPA.
At the outset, messages one, two, and five are plainly informational in nature. The first (sent the day after plaintiff joined) welcomes him to the gym; the second provides a link to classes and group training schedules, and the fifth informs him of a blog containing workout tips and testimonials. Accordingly, plaintiff’s provision of his cell phone number constitutes express consent to receive these informational messages which relate to his provision of his number to defendant: he provided the number in joining the gym, and the messages provide information on gym amenities or activities. The third message, “Dear member, Become your best self with-our Personal Trainers. Ask us for info on our PT program. (http://tinyurl.com /yc8zaep8),” could in some contexts constitute advertising; however, at the time plaintiff received this message, he had already joined the gym and signed up for six months of personal training services. The message merely encouraged plaintiff to take advantage of the personal training services for which he already paid, and thus, it too, may fairly be classified as informational. Express written consent was therefore not necessary. The final message complained of by plaintiff reads: “Follow us on social media! Facebook (http://tinyurl.com/ Y8m7okwe) lnstagram (http://tinyurl.com/y77ocpjh).” Again, defendant argues that this is merely informational, inviting plaintiff to join the on-line/social media community of the gym of which he is already a member. While defendant’s Facebook and lnstagram sites in all likelihood do have a promotional aspect, the message in question falls outside of the regulatory definition of advertising and telemarketing. An invitation to visit a social media site is not material which specifically advertises “the commercial availability or quality of any property, goods, or services,” nor does it constitute “the initiation of a … message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services….” Accordingly, this final message also did not require express written consent.