DMA to Host Teleconference May 16 to Brief Members on FTC's New CAN-SPAM Rules

May 13, 2008 — To brief members on the impact of Federal Trade Commission’s (FTC) new CAN-SPAM rules, the Direct Marketing Association (DMA) will host a conference call on Friday, May 16 at 1 p.m. (EDT). To register, please email government@the-dma.org.

The FTC on Monday announced that it has approved four new rule provisions under the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM). The provisions are intended to clarify the Act’s requirements.

The new rule provisions address four topics:

· An e-mail recipient cannot be required to pay a fee, provide information other than his or her e-mail address and opt-out preferences, or take any steps other than sending a reply e-mail message or visiting a single Internet Web page to opt out of receiving future e-mail from a sender.

· The definition of “sender” was modified to make it easier to determine which of multiple parties advertising in a single e-mail message is responsible for complying with the Act’s opt-out requirements.

· A “sender” of commercial e-mail can include an accurately-registered post office box or private mailbox established under United States Postal Service regulations to satisfy the Act’s requirement that a commercial e-mail display a “valid physical postal address.”

· A definition of the term “person” was added to clarify that CAN-SPAM’s obligations are not limited to natural persons.

In addition, the SBP accompanying the final rule also addresses a number of topics that are not the subject of any new rule provisions. These include:

· CAN-SPAM’s definition of “transactional or relationship message.”

· The FTC’s decision not to alter the length of time a “sender” of commercial e-mail has to honor an opt-out request.

· The FTC’s determination not to designate additional “aggravated violations” under the Act.

· The FTC’s views on how CAN-SPAM applies to forward-to-a-”friend” e-mail marketing campaigns, in which someone either receives a commercial e-mail message and forwards the e-mail to another person, or uses a Web-based mechanism to forward a link to or copy of a Web page to another person.

The SBP explains that, as a general matter, if the seller offers something of value in exchange for forwarding a commercial message, the seller must comply with the Act’s requirements, such as honoring opt-out requests.

The new rule provisions and SBP are a follow-up to a Notice of Proposed Rulemaking (NPRM) and Advance Notice of Proposed Rulemaking (ANPR) on these and other CAN-SPAM topics that the Commission published on May 12, 2005 and March 11, 2004, respectively.

The Commission received 152 comments and suggestions on the NPRM and 13,517 comments and suggestions on the ANPR from representatives of a broad spectrum of the online commerce industry, trade associations, individual consumers, and consumer and privacy advocates. The new rule provisions and SBP are based on these comments and suggestions as well as the Commission’s law enforcement experience.

To review the new CAN-SPAM rules, which have not yet been published in the Federal Register, click here.

The Commission vote to approve the Federal Register Notice was 4-0.

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