FTC Seeks Comment on Definitions and Substantive Provisions Under the CAN-SPAM Act

May 13, 2005

The Federal Trade Commission published a Federal Register notice today seeking public comment on certain definitions and substantive provisions under the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM or the Act).

In this Notice of Proposed Rulemaking (NPRM), the Commission proposes rule provisions on five topics: (1) defining the term “person,” a term used repeatedly throughout the Act but not defined there; (2) modifying the definition of “sender” to make it easier to determine which of multiple parties advertising in a single e-mail message will be responsible for complying with the Act’s “opt-out” requirements; (3) clarifying that Post Office boxes and private mailboxes established pursuant to United States Postal Service regulations constitute "valid physical postal addresses" within the meaning of the Act; (4) shortening from ten days to three the time a sender may take before honoring a recipient's opt-out request; and (5) clarifying that to submit a valid opt-out request, a recipient cannot be required to pay a fee, provide information other than his or her e-mail address and opt-out preferences, or take any steps other than sending a reply e-mail message or visiting a single Internet Web page.

This NPRM is a follow-up to an Advance Notice of Proposed Rulemaking (ANPR) on these and other CAN-SPAM topics that the Commission published on March 11, 2004. The comment period for the ANPR ended April 20, 2004. The Commission received 13,517 comments and suggestions from representatives of a broad spectrum of the online commerce industry, trade associations, individual consumers, and consumer and privacy advocates. The current proposals are based on the comments received in response to the ANPR, as well as the Commission’s law enforcement experience.

The NPRM also addresses a number of other topics that were raised in comments responding to the ANPR, although those topics are not the subject of any proposed rule provisions. These include: CAN-SPAM’s definition of “transactional or relationship message;” the Commission’s views on how CAN-SPAM applies to certain email marketing practices, including “forward-to-a-friend” e-mail marketing campaigns; and the Commission’s determination not to designate additional “aggravated violations” under section 7704(c)(2) of the Act.

Comments responding to the NPRM should refer to “CAN-SPAM Act Rulemaking, Project No. R411008”, to facilitate the organization of comments. A comment filed in paper form should include this reference both in the text and on the envelope, and should be mailed to the following address: Federal Trade Commission, CAN-SPAM Act, Post Office Box 1030, Merrifield, VA 22116-1030. Please note that courier and overnight deliveries cannot be accepted at this address. Courier and overnight deliveries should be delivered to the following address: Federal Trade Commission/Office of the Secretary, Room H-159, 600 Pennsylvania Avenue, N.W., Washington, DC 20580. Comments containing confidential material must be filed in paper form. Comments filed in electronic form should be submitted by clicking on the following Web link: https://secure.commentworks.com/ftc-canspam/ and following the instructions on the Web-based form. Comments must be received by June 27, 2005.

Contact ALTA at 202-296-3671 or communications@alta.org.

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