The Federal Communications Commission has long held that a person who knowingly releases his telephone number to a person or entity has in effect given his permission to be called at that number unless he provides “instructions to the contrary.” In a recent case involving Papa John’s Pizza, the U.S. District Court for the Eastern District of Virginia provided some contour to just what “absent instructions to the contrary” means.

On July 17, 2009 William Downing ordered a pizza from Papa John’s on-line. When placing the order he completed the Papa John’s registration page and provided his cell phone number. Next to the line where he wrote his cell phone number was an unchecked box and the statement, “Send me special text message offers from Papa John’s.” Mr. Downing gave his cell phone number but claims he did not check the box asking to receive future offer information. As proof, Mr. Downing showed that if he had checked the box he would have gotten a text message stating thank you for “opting in” to receive the text messages. The Downings phone records showed they got no such text message. Also, a few months after he gave his number, Papa John’s moved over one million records containing its internet registrations to a new text messaging platform. It was only after this move that Downing got his first Papa John’s promotional text message, suggesting some mistake may have been made in the data transfer.

The Downings eventually sued Papa John’s saying they had not provided authority for it to text him using an autodialer. The court denied Papa John’s motion for summary judgment because the Downings had evidence that they did not check the box electing to receive text messages. The court ruled that was an “instruction to the contrary” and the provision of the number was not express consent the plaintiffs were therefore allowed to proceed with their action against Papa John’s.

The law regarding express consent seems to be developing by the week.