FTC Seeks Comment on Proposed Can-Spam Rules on “Primary Purpose”.
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The Federal Trade Commission (FTC or Commission), on August 13, 2004, published a notice of proposed rulemaking (NPRM) regarding how to determine the “primary purpose” of commercial electronic mail messages under the CANSPAM Act (Pub. L. No. 108-187).1 This issue is of great importance because it determines the range of e-mail messages that are subject to the Act’s requirements to honor an opt out and include a physical address and an indication that the e-mail is a solicitation, as well as the Act’s prohibitions against spam falsification. Comments on the proposed rule are due September 13. The Commission has indicated that, due to its tight statutory deadline for completion of this proceeding, it does not intend to extend the comment period. We believe that it is important to provide substantive comments to the Commission. We believe that this NPRM is a positive effort by the FTC to create fairly objective standards which, to a large extent, would depend upon what the sender includes in the subject line and at the beginning of the message body text. Therefore, subject to law relating to deception, a “sender” can strongly impact the “primary purpose” of the e-mail depending upon the content of the subject line. In the end, this standard may be more effective than some of the other tests that were presented. Another factor to note is that the NPRM does not define very well the categories of commercial, transactional, and relationship e-mails. Finally, the NPRM does not adequately address circumstances in which there are multiple senders. We would continue to assert that where there are several advertisers in a communication, these advertisers are not the sender. The sender is in fact the person who sent the communication, of which the advertisement was part. The Commission sets forth three different standards for determining the primary purpose of a message, depending on the content of the message: First, if a message contains only content that advertises or promotes a product or service (”commercial content”), then the primary purpose is commercial. Second, if a message contains content that is both commercial and transactional or relationship in nature,2 then the primary purpose is commercial if (1) a recipient reasonably interpreting the subject line likely would conclude that the message advertises or promotes a product or service; or (2) the message’s transactional or relationship content does not appear at or near the beginning of the body of the message. Third, if a messages contains content that is both commercial and neither transactional nor relationship in nature, then the primary purpose is commercial if either (1) a recipient reasonably interpreting the subject line likely would conclude that the message advertises or promotes a product or service; or (2) a recipient reasonably interpreting the body of the message likely would conclude that the primary purpose is to advertise or promote a product or service. This NPRM addresses only the FTC’s proposed primary purpose criteria because this rulemaking must be completed by mid- December 2004. In the NPRM, the Commission states that it soon will address the discretionary rulemaking issues upon which it elicited comment in its Advance Notice of Proposed Rulemaking (ANPRM) proceeding earlier this year. Of particular interest, the Commission also specifically states that a newsletter that combines editorial or informational content and advertising would not be considered to have a primarily commercial purpose unless it meets the Category 2 criteria. 69 Fed. Reg. at 50099. (See Section III below.) It also offers a preview of its likely interpretation of the “transactional or relationship” definition’s provision concerning delivery of goods or services that the recipient has previously agreed to receive (15 U.S.C. s. 7702(17)(A)(v)) (see endnote 2). After discussing in more detail the.. Source : accessmylibrary.com |