CAN-SPAM Act
Federal “CAN-SPAM” Legislation, which became effective in January 2004, regulates the sending of commercial email 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 emails to the requestor’s e-mail address. You cannot help another entity send an email to that address or have another entity send an email 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 emails from you. It also must include your valid physical postal address.
Federal Do-Not-Call Resources
- Pennsylvania Telemarketer Registration Act
- The Federal Communications Commission (FCC) Telemarketing Rules document includes links to rules, registry and other FCC resources.
- Review the federal Telecommunications Consumer Protection Act (TCPA).
- Federal Trade Commission (FTC) Do Not Call List
- Subscribe to the FTC Do Not Call List. New subscribers to the federal list must set up a profile before being allowed to access the list. Use the More Information button for instructions on how to fill out the profile form, information about the help desk and resetting passwords, among other common issues.
- You can also view NAR’s explanation of how to access the list (may require a password). NOTE: Accessing the downloaded list requires the use of software to “unzip” the file. Winzip and PkZip are two popular products for this use.
- Review the FTC’s basic rules for accessing the Federal Do Not Call List to understand the registration process and the background of federal rules and information on how to access the federal list.
- Complying with the Telemarketing Sales Rule reviews all aspects of federal compliance, published by the FTC. Note that some information may be incorrect, in that Pennsylvania’s law is more restrictive than the Federal rules in several areas. See the Do-Not-Call Presentation for a comparison.
- The Q&A on Federal and State Do Not Call Issues covers many common questions regarding the integration of Federal Do Not Call regulations with the currently existing Pennsylvania Telemarketer Registration Act.
- The Do-Not-Call rules provide a potential “safe harbor” for brokers who create, maintain and implement a compliant Do-Not-Call policy in the office. The Sample Office Policy (Federal and State) can be used as a starting point for brokers who do not currently have their own policy. Be sure to consult with brokerage counsel before implementing any policy.
- NAR Do-Not-Call Resources NOTE: These resources are only valid for federal regulations. Certain requirements in the Pennsylvania Do-Not-Call law may be more restricted than the Federal regulations and will apply.
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:
- Codify an established business relationship (EBR) exemption to the prohibition on sending unsolicited fax advertisements
- Define EBR as used in the context of unsolicited fax advertisements
- 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
- 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.
