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Washington Report
June 2004
ICFA Files Comments On Proposed Anti-Spam Rules
by Robert M. Fells, Esq., general counsel
The Federal Trade Commission has announced a new rulemaking proceeding to restrict commercial e-mail, including a study of the feasibility of a "National Do Not E-mail" registry similar to the Do Not Call list that the FTC enacted against telemarketers last year.
The rulemaking is the result of a new law recently passed by Congress, "Controlling the Assault on Non-Solicited Pornography and Marketing Act," or the CAN SPAM Act for short. In particular, the FTC is seeking comments to define whether "the primary purpose" of an e-mail involves "a commercial advertisement or promotion of a commercial product or service." Such types of e-mail would be subject to the requirements and restrictions of the act.
However, the FTC is also seeking comments for e-mails that are "transactional or relationship messages" that would be exempt from most of the provisions of the act.
The ICFA subsequently filed comments with the FTC regarding these issues as they may affect cemeteries, funeral homes and related businesses. Noting that the regulations would restrict unsolicited e-mail where the "primary purpose" is commercial, the ICFA stated its concern "that the unique relationship between cemeteries and funeral homes, and the families they serve is taken into consideration in the regulations developed by FTC.... For example, family members who own cemetery property or have loved ones interred at a cemetery will have an ongoing relationship with that cemetery for decades and such relationships are often multi-generational. Obviously, this is not the typical relationship between a business and its customers."
The ICFA explained, "Cemeteries will alert families to special events or observances, changes in the cemetery rules, or simple reminders of the rules to avoid misunderstandings.... The ICFA believes that the intent of provisions of the CAN SPAM Act were never intended to restrict these types of electronic communications...."
The ICFA also concurred with comments submitted by the Office of Advocacy, U.S. Small Business Administration, and with comments submitted by the American Society of Association Executives. Our members will be kept informed of developments in this rulemaking. More information on the CAN SPAM rulemaking can be found on the FTC Web site at www.ftc.gov/opa/2004/04/canspam.htm.
In a related development, and a signal that it intends to move rapidly on this rulemaking, the FTC announced adoption of a rule under the CAN SPAM Act that requires sexually oriented e-mail spam to contain a warning in the subject line stating, "SEXUALLY EXPLICIT" (capitalization in original). This warning must be included by May 19, 2004, on all such e-mail spam. More details on this new requirement can be found at www.ftc.gov/opa/2004/04/ adultlabel.htm.
Copyright ICFA 2004
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