• by Wendy Davis  @wendyndavis, January 30, 2017

Siding with the gym Vertical Fitness, a federal appellate court has dismissed a lawsuit alleging that the gym violated a robo-texting law by sending ads to a former member.

The 9th Circuit Court of Appeals ruled that California resident Bradley Van Patten consented to receiving text messages from the gym when he provided it with his cell phone number.

"Van Patten gave his consent to being contacted about some things, such as follow-up questions about his gym membership application, but not to all communications," a three-judge panel of the 9th Circuit said in a ruling issued Monday. "The scope of his consent included the text messages’ invitation to 'come back' and reactivate his gym membership."

The ruling grew out of a lawsuit filed by Van Patten in 2012, when he alleged the gym violated the Telephone Consumer Protection Act by sending him ads via text message. That law prohibits companies from using autodialers to send text ads, without the recipients' prior consent.

Van Patten said he joined a Gold's Gym in 2009, but canceled his membership three days later. When he filled out the application, he provided his cell phone number, according to court papers.

Several years later, the Gold's Gym he had joined became affiliated with the company Vertical Fitness, which developed a marketing campaign aimed at convincing former members to return.

Van Patten alleged in his lawsuit that he received two unsolicited text messages as part of that campaign.

U.S. District Court Judge Larry Burns dismissed the lawsuit in 2014, ruling that Van Patten consented to receiving the messages.

He then appealed to the 9th Circuit, which upheld Burns' ruling.

But even though the 9th Circuit sided with Vertical Fitness on a dispositive issue, the court also rejected the company's argument on a key point.

The gym had argued that Van Patten shouldn't be able to proceed with a lawsuit because he hadn't suffered a "concrete" injury as a result of the alleged text ads. Vertical Fitness relied on a recent Supreme Court decision involving the data aggregator Spokeo. In that matter, the Supreme Court ruled that a consumer who sued Spokeo for allegedly violating a federal law could only proceed if he first showed that he suffered a concrete injury.

But the 9th Circuit said in its ruling that an unsolicited text message was the type of concrete harm that would support a lawsuit.

"Congress identified unsolicited contact as a concrete harm, and gave consumers a means to redress this harm," the judges wrote. "The telemarketing text messages at issue here, absent consent, present the precise harm and infringe the same privacy interests Congress sought to protect."

That portion of the ruling could affect numerous tech companies, including Facebook and Twitter, which are currently facing lawsuits accusing them of violating the robo-texting law.