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FTC
POSTPONES EFFECTIVE DATE FOR SPAM RULES
The Federal
Trade Commission (FTC) announced Jan. 12, 2005 it has postponed the effective
date of its final regulations for determining the "primary purpose" of a
commercial e-mail. Due to a determination by the Office of Management and
Budget that the new rule constituted a "major rule" and thus required 60 days
for Congressional review, the FTC revised the effective date of the new rules
until March 28, 2005.
In effect since Jan. 1, 2004, the CAN-SPAM Act, the first federal law
restricting unsolicited commercial e-mail, required the FTC to issue regulations
"defining the relevant criteria to facilitate the determination of the primary
purpose of an electronic mail message."
The FTC's final regulations are almost identical to the proposed regulations
published last year on Aug. 13 in the Federal Register. ASAE submitted comments
to the FTC on the proposed rules asserting that all e-mails from non-profits to
members should be deemed "transactional or relationship" messages and therefore
not commercial in nature. To view the full text of our comments, please visit
the ASAE Web site at
http://info.asaenet.org/pdf/ftc_spam.pdf.
Though the FTC does state in the notice that "it is possible - or even likely -
that messages between a nonprofit and its members could constitute 'transaction
or relationship messages,'" the FTC points out that if the recipient of the
message deems the subject line to be an advertisement or promotion, or if the
"transactional and relationship" contact is not at the beginning of the message,
the message would then still be considered commercial in nature. Therefore, the
FTC did not grant an exception for such e-mails from the CAN-SPAM regulations.
It is now essential for any organization seeking to determine whether e-mails
they send are commercial to apply a three-pronged test outlined on the FTC Web
site at:
http://www.ftc.gov/opa/2005/01/primarypurp.htm.
If an e-mail can be deemed commercial, the message must contain all of the
following: an electronic opt-out; a valid postal address; and conspicuous notice
at the beginning of the message that the e-mail is commercial in nature.
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