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.

(FTC File No. R411008)