• FTC Initiates Comment Period on Spam Law
  • March 26, 2004
  • Law Firm: Manatt, Phelps & Phillips, LLP - Los Angeles Office
  • Beginning on March 11, 2004, the Federal Trade Commission is seeking comments from the public in connection with clarifying specific provisions in the Can-Spam Act, which went into effect on January 1 of this year. The Can-Spam Act requires the FTC to report back to Congress on various issues concerning the sending of unsolicited commercial e-mail. One of the most talked-about provisions concerns the creation and implementation of an effective do-not-e-mail registry, which the FTC is openly pessimistic about.

    Specifically, the FTC is seeking comments regarding:

    • Criteria on how to determine whether the "primary purpose" of an e-mail is commercial;
    • Whether the Act's exemption for e-mail that contains "transactional or relationship messages," i.e., messages that facilitate a transaction that the recipient has previously agreed to, is adequate to address technological changes or the purposes of the Act;
    • Whether giving the sender ten business days to process opt-out requests is reasonable;
    • Whether certain activities in addition to harvesting e-mails should be deemed aggravated violations subject to stiffer penalties; and
    • Whether the FTC should issue additional regulations concerning: (1) the legal obligations of initiators and recipients who forward messages in "forward to a friend" scenarios, (2) the obligations of multiple senders of a single e-mail, (3) what constitutes a "physical postal address," and (4) what constitutes a legally compliant "from" line.

    Comments from the public regarding the do-not-e-mail registry are due by March 31, 2004, and all others are due on April 12, 2004. Comments can be filed electronically.

    Significance: Given that the Can-Spam Act in its current form has been ineffectual at deterring spammers and reducing the volume of spam, thoughtful and practical responses to the FTC's request for comments may have a significant impact on the current language contained in the Act, any future regulations, and on spam generally.