The Federal Trade Commission has published an Advance Notice of Proposed Rulemaking and Request for Public Comment seeking public comment on several issues related to the CAN-SPAM Act, including (i) mandatory rulemaking, (ii) discretionary rulemaking and (iii) reports to Congress. The FTC also seeks comment on issues related to compliance with the ACT.

    Mandatory “Primary Purpose” Rulemaking

    The CAN-SPAM Act directs the FTC to issue regulations clarifying the “primary purpose” of an e-mail message. The term “primary purpose” is incorporated in the definition of “commercial electronic mail message” (i.e., “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service”). Since the CAN-SPAM Act applies to “commercial electronic mail messages,” identifying the “primary purpose” of an e-mail will be critical in determining whether the Act applies to that e-mail.

    Discretionary Rulemaking

    The CAN-SPAM Act also provides discretionary authority for the FTC to issue regulations:

    • Modifying the definition of “transactional or relationship message” to the extent necessary to accommodate changes in technology or practices and accomplish the Act’s purposes;
    • Modifying the 10 business-day period for honoring opt-out requests;
    • Specifying additional activities or practices as aggravated violations; and
    • Implementing the provisions of the Act.

    Reports to Congress

    The CAN-SPAM Act also requires the FTC to provide reports to Congress regarding:

    • Establishing a nationwide “Do Not E-Mail” Registry;
    • Establishing a system for rewarding those who supply information about CAN-SPAM violations;
    • Setting forth a plan for requiring commercial e-mail to be identifiable from its subject line; and
    • The effectiveness of the CAN-SPAM Act.

    Other Issues

    The FTC also invites comment on whether:

    • Post office boxes or commercial mail drops satisfy the “valid physical address of the sender” requirement;
    • The Act’s treatment of “from” line information is sufficiently clear;
    • The Act requires the “from” line to identify a sender by name; and
    • Rules should be adopted clarifying (i) obligations of initiators and recipients who forward messages in “forward-to-a-friend” scenarios, (ii) obligations of multiple senders of a single e-mail and (iii) what constitutes a valid physical postal address.

    Comments addressing the nationwide “Do Not E-Mail” Registry must be submitted by March 31, 2004. Comments addressing any other aspect of the CAN-SPAM Act must be submitted by April 12, 2004. If you would like additional information or assistance in drafting comments, please do not hesitate to contact us.

    Margaret Stolar