For
Release: March 10,
2004
FTC Seeks Comments
on Spam Regulation
The Federal Trade Commission will publish
a Federal Register Notice Thursday, March 11, 2004, seeking
public comment on regulations regarding unsolicited commercial
e-mail - spam. The CAN-SPAM Act, which took effect January
1, 2004, requires that the Commission issue regulations “defining
the relevant criteria to facilitate the determination of the
primary purpose of an electronic mail message.” Since
the CAN-SPAM Act applies almost exclusively to “commercial
electronic mail messages,” defining the criteria used
to determine the “primary purpose” of an e-mail
will clarify how to determine whether the Act applies to certain
electronic messages.
Beginning Thursday, March 11, comments
can be filed electronically through the federal government’s
centralized rulemaking Web site, www.regulations.gov.
The FTC will post a “web form” at the site to
make it easier for commenters to address the various issues
in the Federal Register notice. Commenters may address as
many or as few issues as they wish, or skip the form and write
what they choose in a text box, or attach a separate document
for submission to the record.
According to the Federal Register Notice,
the FTC is seeking comment on the mandatory “primary
purpose” rulemaking, and on several other issues, including
four other areas of discretionary rulemaking authority established
in the Act.
First, the Act designates five categories
of messages as “transactional or relationship messages,”
which are exempt from the provisions of the Act. For example,
messages sent “to facilitate, complete, or confirm a
transaction the recipient has agreed to enter into with the
sender” are deemed to be “transactional or relationship
messages,” and are therefore exempt from the Act’s
requirements that apply only to commercial e-mail. The Act
gives the FTC authority to issue rule provisions that modify
the definitions of these categories of “transactional
or
relationship” messages if it finds such modification
is necessary to accommodate technological changes in or to
accomplish the purposes of the Act. The Commission seeks comment
whether it should exercise this authority, and if so, how.
Second, the CAN-SPAM Act requires that
e-mailers allow recipients to opt out of receiving further
commercial e-mail and provides senders 10 business days to
process opt out requests. The Act gives the Commission the
authority to modify the 10 day period for effectuating opt-out
requests. The FTC is seeking comment on the reasonableness
of the 10-business-day time period and whether a different
time period would be more reasonable, taking into account
the interest in allowing consumers to opt out, the interests
of recipients of spam, and the burdens imposed on senders
of lawful commercial e-mail.
Third, the Act defines certain practices,
such as e-mail address “harvesting” and “dictionary
attacks” as aggravated violations. The Act significantly
increases the amount of damages a violator may be liable to
pay if he or she engages in an aggravating violation while
violating another provision of the Act. The CAN-SPAM Act authorizes
the Commission to designate other practices as aggravated
violations. The FTC seeks comment on what additional activities
and practices, if any, should be added to the list of aggravated
violations.
Fourth, the Act provides that the Commission
may issue regulations to implement the provisions of the Act,
and the FTC is seeking comment on whether additional regulations
would be helpful. The notice asks for comment on the following
specific issues:
- Would it assist companies and
individuals seeking to comply if the Commission were to
adopt rule provisions clarifying the legal obligations of
initiators and recipients who forward messages in “forward-to-a-friend”
scenarios?
- Would it be helpful if the Commission
were to adopt rule provisions clarifying the obligations
of multiple senders of a single e-mail under the Act?
- Questions have arisen about whether
post office boxes or commercial mail drops satisfy the Act’s
requirement that commercial e-mail messages include a “valid
physical postal address of the sender.” Would it would
be useful for the Commission to adopt rule provisions clarifying
what constitutes a “valid physical postal address”?
- The Act prohibits false or misleading
transmission information, but states that a “from”
line that accurately identifies any person who initiated
the message will not be considered false or misleading.
The notice asks whether the Act’s treatment of “from”
line information is sufficiently clear, and whether the
Act requires the “from” line to identify a sender
by name.
The Notice also seeks comment on four reports
to Congress required by the CAN-SPAM Act:
- A report on establishing a nationwide Do Not E-Mail Registry,
due June 16, 2004;
- A report on establishing a system for rewarding those
who supply information about CAN-SPAM violations, due September
16, 2004;
- A report setting forth a plan for
requiring commercial e-mail to be identifiable from its
subject line, due June 16, 2005; and
- A report on the effectiveness
of CAN-SPAM, due December 16, 2005.
Starting March 11, comments can be filed
electronically at http://www.regulations.gov.
Commentors should select “Federal Trade Commission”
at “Search for Open Regulations,” locate the summary
of this Notice, click on “Submit a Comment on this Regulation,”
and complete the form. Comments addressing the “National
Do Not E-mail” Registry must be submitted on or before
March 31, 2004. Comments addressing any other aspect of the
CAN-SPAM Act must be submitted on or before April 12, 2004.
Written comments should refer to the CAN-SPAM Act Rulemaking,
Project No. R411008 on both the envelope and the text. The
FTC is requesting that any comment filed in paper form be
sent by courier or overnight service, if possible, as U.S.
Postal Service mail in the Washington area and at the Commission
is subject to delay due to heightened security precautions.
Comments can be delivered by courier or overnight service
to Federal Trade Commission/Office of the Secretary, Room
159-H, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580.
Comments can be mailed by U.S. Postal Service to the following
address: Federal Trade Commission, CAN-SPAM Act, Post Office
Box 1030, Merrifield, VA 22116-1030. Comments will be placed
on the public record.
Copies
of the Federal Register Notice are available from the FTC’s
Web site at http://www.ftc.gov
and also from the FTC’s Consumer Response Center, Room
130, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580.
The FTC works for the consumer to prevent fraudulent, deceptive,
and unfair business practices in the marketplace and to provide
information to help consumers spot, stop, and avoid them.
To file a complaint, or to get free information on any of
150 consumer topics, call toll-free, 1-877-FTC-HELP (1 877-382-4357),
or use the complaint form at http://www.ftc.gov.
The FTC enters Internet, telemarketing, identity theft, and
other fraud-related complaints into Consumer Sentinel, a secure,
online database available to hundreds of civil and criminal
law enforcement agencies in the U.S. and abroad.
MEDIA CONTACT:
Claudia Bourne Farrell,
Office of Public Affairs
202-326-2181
STAFF CONTACT:
Michael Goodman,
Bureau of Consumer Protection
202-326-3071
(FTC File No. R411008)
(http://www.ftc.gov/opa/2004/03/canspam.htm)
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Related Documents:
16 C.F.R. Part 316: R411008
Definitions, Implementation, and Reporting Requirements
Under the CAN-SPAM Act: Advance Notice of Proposed Rulemaking
and Request for Public Comment
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