Comments:

Re: Comment on CAN-SPAM Act, Definition of "Transactional or relationship message." Ladies and Gentlemen: Thank you for the opportunity to comment upon the CAN-SPAM Act. I am an attorney with Fredrikson & Byron, P.A. in Minneapolis and advise clients on a variety technology and e-business issues including application of the CAN-SPAM Act. My comment concerns the definition of a "transactional or relationship message" and the application of this definition to email sent in response to an affirmative request by a Recipient to receive information and also affirmative consent to receive such information via email. A transactional or relationship message is defined, in part, as an electronic mail message the primary purpose of which is "to facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter into with the sender." 47 USC § 7702(17)(a)(i). I respectfully encourage the Commission to take the position that the above definition applies to email sent under the following circumstances: One or more email are sent to a Recipient by a Sender pursuant to an on-line agreement between the Recipient and the Sender under which the Sender agrees to provide requested information to the Recipient in the subsequent email. For example, a number of businesses operate websites that include a form or page on which the business offers to provide additional information, such as a subscription to a periodic newsletter or a product catalog, sent via email. A website visitor may accept the offer of additional information by manually entering into the form or page the visitor's email address. To complete the transaction, after manually entering the visitor's email address, the visitor must typically click a button with words such as "SEND REQUEST" or “SUBSCRIBE”. Under such conditions, the subsequent email sent by the business should be deemed a transactional or relationship message as the sending of the email "complete[s]" the "commercial transaction" "previously agreed to" between the parties when the website visitor accepted the businesses’ offer to provide additional information through email by providing the visitor’s email address and clicking a button to complete the transaction. Not only is this interpretation consistent with the plain meaning of the definition, but also it is in keeping with the Congressional purpose of addressing the problem posed by "unsolicited" email, because all email sent in the above scenario is in response to an explicit request by the Recipient to receive such email. A different conclusion by the Commission will have at least two adverse consequences: First, it will impose an administrative and legal burden on businesses whose email, because they are explicitly requested and desired by Recipients, are not part of the problem identified by Congress and complained of by consumers. Second, many citizens will not, in-fact, receive important information they desire and have requested because widely-used email filtering software programs are often set to block email containing language required by the Act (e.g., a statement that "this email is an advertisement or solicitation" as required by 15 USC § 7704(a)(5)(A)(i)) on the false assumption all email containing such language is unwanted spam. I appreciate your consideration of this Comment. Sincerely, Steven E. Helland Fredrikson & Byron, PA 200 South Sixth Street Suite 4000 Minneapolis, Minnesota 55402 shelland@fredlaw.com Tele. 612.492.7113