| Comment Number: | EREG-01-d5896-c29011 |
| Received: | 8/13/2004 12:00:00 AM |
| Organization: | Council for Marketing and Opinion Research (CMOR) |
| Commenter: | Brian Dautch |
| State: | MD |
| Agency: | Federal Trade Commission |
| Rule: | Definitions, Implementation, and Reporting Requirements Under the CAN-SPAM Act (NPRM) |
| Docket ID: | [3084-AA96] |
| No Attachments |
Comments:
CMOR, The Council for Marketing and Opinion Research, represents survey researchers. We would like the opportunity to briefly comment on one small aspect of the issue at hand: surveys themselves should not be regarded as "commercial" under the CAN SPAM Act. For one thing, survey research does not propose any sort of commercial transaction; that is to say, nothing is offered up for sale. Secondly, surveys do not advertise for a product or service. They are simply a question or series of questions designed to elicit people's opinions on a given subject. For example, the question "Who do you intend to vote for in the upcoming election: Candidate A or Candidate B?" is neither an attempt to sell something nor an attempt to advertise on behalf of a given candidate. Furthermore, the FTC relied on surveys while compiling the very Regulation on which this comment is based. For example, the Regulation contains a sentence near the bottom of [[Page 50103]] which states, "Although it is impossible to identify every industry that sends commercial email messages or transactional or relationship messages, some surveys suggest that an ever-increasing number are using the Internet." In other words, the FTC has already acknowledged that survey research is a valid, legitimate method of gauging the public's opinions on an issue, such as CAN SPAM and the problem of commercial e-mail messages. This, in and of itself, implies that the Commission does not view survey research as commercial speech. After all, the FTC has used the method of survey research to *determine* what people think about commercial e-mails...therefore, surveys themselves must not be commercial. While this point implies that the Commission is already in full agreement with CMOR on the issue of survey research's non-commercial status, CMOR simply wanted to make sure that survey research is on the Commission's radar as they define and implement crucial aspects of the CAN SPAM Act. Also, CMOR accepts, and encourages the idea, that "pseudo-surveys" which are actually attempts at sales or other commercial transactions should be illegal under CAN SPAM. In other words, if a person or organization sends an e-mail that *seems* like a survey at first, but actually turns out to be a commercial attempt at a sale, THAT particular "pseudo-survey" should not enjoy the exemption that a legitimate non-commercial survey would. In other words, we urge the Commission to interpret pure, legitimate survey research to be exempt from the aims and intent of the CAN SPAM Act. Other "spammers," who try to pose as survey researchers in an attempt to take advantage of our exemption, but are actually attempting to sell or advertise a product, should be fully punishable and prosecuted in our view. Please consider ruling in a manner that in no way leaves any open loopholes that could leave survey research vulnerable to CAN SPAM's interpretation of commercial e-mails or commercial speech. Please also rule in a manner that protects the legitimate, scientific benefits that can be learned through the conduct of legitimate survey research. Thank you, Brian D. Dautch Director of Government Affairs CMOR