FTC Seeks Comments on ‘Primary Purpose’ of E-Mail

The Federal Trade Commission has outlined three criteria to determine whether an email message should be considered “commercial,” and hence subject to stricter regulation under the CAN-SPAM Act.

The agency is required, under the new law, to define a framework to determine the “primary purpose” of an email message. Beginning August 13, the FTC will seek public comment on its proposed criteria via an online form. Under the law, the FTC must formalize the determination by January 1, 2005.

The request for comment is the latest in the ongoing CAN-SPAM rulemaking process. This past spring, the FTC sought initial public comment on the “primary purpose” rulemaking, as well as on other issues related to CAN-SPAM, including the Do-Not-E-Mail register, an idea the federal agency recently nixed.

The primary purpose determination, which categorizes email messages either as commercial or transactional/relationship in nature, is of particular interest to a wide range of players, including e-commerce companies, financial institutions and publishers. In theory, at least, it’s still an open question as to whether an electronic bank statement that includes a promotional message; or an e-newsletter containing paid advertising, is “commercial” or not. Commercial messages are subject to stricter regulations under CAN-SPAM, such as mandatory inclusion of the mailer’s postal address.

Under the FTC’s current proposals, email would be considered primarily commercial in nature if its only content advertises or promotes a product or service. If a message contains both commercial and non-commercial content, the subject line and location of “transactional or relationship” content within the message body will be taken into consideration, as well as the relative proportion of commercial vs. non-commercial content.

Industry observers are waiting to read the entirety of the FTC’s proposals on Friday, but expressed confidence both in the federal agency and in the process.

“The most important thing is it’s up for comment,” observed Anne P. Mitchell, president and CEO of the Institute for Spam and Internet Public Policy. “[The FTC] actually wants the comments. They listen. People ought to be taking advantage of that and commenting. Whatever’s scary to marketers right now can be refined and made not so scary.”

J. Trevor Hughes, executive director of the NAI E-Mail Service Provider’s Coalition, said, “We don’t have the details yet, and that’s where the rubber hits the road. We’ll be meeting with our legislative committee to develop comments over the next two week. We have been encouraged with all our conversations with the FTC to date. That said, we want to be very careful.”

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