Federal “CAN-SPAM” Legislation, which became effective in January 2004, regulates the sending of commercial e-mail advertisements. Unlike the Federal Do Not Call regulations, this legislation totally supersedes any state law, so there should not be another “layer” of Pennsylvania law to deal with this issue.

The primary requirements of the law (as stated by the FTC) are as follows:

  • It bans false or misleading header information. Your e-mail’s “From,” “To” and routing information – including the originating domain name and e-mail address – must be accurate and identify the person who initiated the e-mail.
  • It prohibits deceptive subject lines. The subject line cannot mislead the recipient about the contents or subject matter of the message.
  • It requires that your e-mail give recipients an opt-out method. You must provide a return e-mail address or another Internet-based response mechanism that allows a recipient to ask you not to send future e-mail messages to that e-mail address, and you must honor the requests. You may create a “menu” of choices to allow a recipient to opt out of certain types of messages, but you must include the option to end any commercial messages from the sender.
  • Any opt-out mechanism you offer must be able to process opt-out requests for at least 30 days after you send your commercial e-mail. When you receive an opt-out request, the law gives you 10 business days to stop sending e-mail to the requestor’s e-mail address. You cannot help another entity send e-mail to that address, or have another entity send e-mail on your behalf to that address. Finally, it’s illegal for you to sell or transfer the e-mail addresses of people who choose not to receive your e-mail, even in the form of a mailing list, unless you transfer the addresses so another entity can comply with the law.
  • It requires that commercial e-mail be identified as an advertisement and include the sender’s valid physical postal address. Your message must contain clear and conspicuous notice that the message is an advertisement or solicitation and that the recipient can opt out of receiving more commercial e-mail from you. It also must include your valid physical postal address.

Federal Do-Not-Call Resources

More Resources

  • The CAN-SPAM Compliance Guide for Business includes information about requirements and prohibitions specifically targeted to businesses and consumers.
  • NAR Field Guide to Reducing Spam Email
  • FTC “Commercial Purpose” Regulations provide guidelines to determine if a message has been sent with a “commercial purpose” and is, therefore, subject to the provisions of the CAN-SPAM law and regulations.
  • FCC Rules regarding “mobile service commercial messages” regulate commercial messages sent to “mobile service” providers such as cellular phones, PDAs, etc. A summary of Rules published by FCC in August 2004. This item is on the NAR website and requires a password to access it. As of March 9, 2005, senders of commercial e-mails classified as “mobile service commercial messages” (“MSCM”) must comply with additional regulations. An MSCM is defined as a “commercial electronic mail message that is transmitted directly to a wireless device that is utilized by a subscriber of commercial mobile service… in connection with that service.” In short, any commercial e-mail message sent to a wireless device is classified ads an MSCM. Senders must check their e-mail lists against a list of domains maintained by the FCC at least every 30 days. A commercial e-mail may only be sent to a recipient at one of these domains if the sender has obtained the “express prior permission” of the recipient.

Do Not Fax

As required by the Junk Fax Prevention Act of 2005, the FCC has drafted regulations regarding fax solicitations.

The faxing rules:

  1. Codify an established business relationship (EBR) exemption to the prohibition on sending unsolicited fax advertisements
  2. Define EBR as used in the context of unsolicited fax advertisements
  3. Require the sender of fax advertisements to provide specified notice and contact information on the fax that allows recipients to “opt out” of any future transmissions from the sender
  4. Specify the circumstances under which a request to “opt out” complies with the Act.

NAR has posted a comprehensive Field Guide covering Do-Not-Call and Do-Not-Fax regulations that will be very helpful for understanding Federal regulations on both these topics.