A Palm Beach County resident has taken a jab at nationwide gym operator Planet Fitness, bringing a putative class action lawsuit in Miami federal court, alleging the fitness company violated the Telephone Consumer Protection Act by sending a marketing text offering a free bottle of water.

The plaintiff, Jody Steward, claimed in the suit that she's been registered on a national do-not-call list since 2004, but that this didn't stop the gym's unsolicited marketing message. She is seeking up to $1,500 in damages for each unwanted text the gym sent. That number is so far unknown, but according to the lawsuit filed Wednesday, total damages could surpass $5 million.

“Thank you for being a Planet Fitness member!” the message read. “Show this text at your home gym today and receive a free bottle of water after your workout!”

According to plaintiffs lawyer Andrew J. Shamis of Shamis Gentile in Miami, Steward has never been a member of Planet Fitness and doesn't know how it got her number. The attorney is handling the case with Scott Edelsberg of Edelsberg Law in Aventura.

Planet Fitness declined to comment.

Read the full complaint: [falcon-embed src="embed_1"]

Congress passed the TCPA in 1991 to restrict unwanted telemarketing, making it a violation for businesses to call or text consumers without their consent.

And it doesn't matter that the text was only about a water bottle, the way Shamis sees it.

“Privacy rights are really being infringed upon by a lot of companies,” Shamis said. “There's a reason why the TCPA was passed. You shouldn't be getting spam text messages on your cell phone, unless you've expressly agreed to receive those text messages.”

According to Shamis, the TCPA involves an ever-evolving body of law thanks to changes in communication since the pre-text message era and thousands of rulings by federal judges across the country.

“Fairly or unfairly, it's kind of turned into its own beast, its own legal animal that's become incredibly complex even though it's all based around a somewhat simple statute,” Shamis said.

Planet Fitness is still working out its defense but is expected to file an answer to the complaint in the coming weeks.

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