TCPA

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TCPA CAN-SPAM Compliance Mark Priebe,
Proximity Marketing
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Agenda

• Recap of fax regulations
• TCPA guidelines
• CAN-SPAM defined
• Circulation practical application
• Regulation discussion questions

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Unsolicited Fax Advertisement
Any material advertising the commercial
availability or quality of any property, goods,
or services which is transmitted to any person
without that persons prior express invitation or
permission. Many companies rationalize what
they are sending is NOT a fax advertisement.
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The Good Old Days
Established Business Relationship TCPA of
1991 to any person with that persons prior
express invitation or permission or to any person
with whom the caller (fax sender) has an
established business relationship
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Mass Panic July 3rd 2003 to have taken effect
Aug. 25, 2003
The EBR - Established Business Relationship was
no longer valid. Instead, you must obtain
Express Written Permission from everyone to whom
you wish to fax.
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Stay Granted August 18, 2003
Re-affirmed (in the short run) the EBR
Established Business Relationship. BUT It
placed an 18 month lifespan on EBR A prior or
existing relationship formed by a voluntary
two-way communication between a person or entity
and a residential subscriber with or without an
exchange of consideration, on the basis of the
subscribers purchase or transaction with the
entity within the eighteen (18) months
immediately preceding the date of the (fax) or on
the basis of the subscribers inquiry or
application regarding products or services
offered by the entity within the three (3) months
immediately preceding the date of the call, which
relationship has not been previously terminated
by either party.
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Back to the future October 3, 2003
Now no time limit on EBR until January,
2005 Now through Jan. 2005 The EBR will not
expire after 18 months of last transaction or 3
months after last inquiry. After Jan. 1, 2005 An
established business relationship will no longer
be sufficient. (Unless the FCC alters the rules
again).
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What are the options today?
A. Obtain express written permission now.
1. Advantages 10 months of
advertiser/subscriber communications. Piggyback
most cost effective. 2.
Disadvantages FCC may alter requirements
B. Waiting to obtain permission closer to
January 2005 Possible avalanche of
permission requests Lower response rates
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CANSPAM Defined

• CAN-SPAM Overview
• Effective Jan. 1, 2004, CAN-SPAM is the
  authoritative legislation that governs all
  commercial email correspondence.
• Unlike fax, email marketers can contact people,
  at least once, as long as they provide an opt-out
  mechanism and comply with other details of the
  Act.
• The Act was created from the perspective of the
  consumer, not business.
• May be enforced by federal and state law
  enforcements and ISPs no private right to
  action.

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CANSPAM Defined

• CAN-SPAM Overview (cont.)
• Pre-empts state laws that require labels on
  unsolicited commercial email or prohibit such
  messages entirely.
• Much of the language is still fairly grey.
  Comprised of three critical components
• Commercial purpose of email is to sell or
  advertise something commercial
• Sender whosever owns the list and/or asked for
  the mailing to be sent
• Affirmative Consent this negates some of the
  Acts restrictions the person behind a
  particular email address has proactively
  personally asked to be added to a list to receive
  a specific type of commercial mailing

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CANSPAM Defined
Every commercial email must contain 1. Valid
headers that do not contain fraudulent
elements. 2. A subject line which accurately
reflects the content of the email. 3. A From
with the name of the advertiser. 4. Clean and
conspicuous notification that the communication
is an advertisement within the body of the email.
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CANSPAM Defined (Cont.)

• Every commercial email must contain
• 5. A valid postal address of the sender
  (advertiser) no PO Box.
• 6. A functioning unsubscribe procedure (either
  via email or Web page).
• Recipient must be removed within 10 business days
• The email address or web page must be functional
  for 30 days after the mailing

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Example
Clear from line
Sample
Accurate subject line
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Example
Sample
Physical address displayed
Clear presentation of marketer
Working opt-out link
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Circulation Practical Application

• Establish and communicate organizational-wide
  policy for handling subscriber email addresses.
• Create a system-wide opt-out policy.
• Develop a process for handling complaints.
• Provide opt-out email addresses to list rental
  advertisers.
• Be aware of what may be coming next
• Do not email registry
• ADV label possible inclusion
• Regulations to protect consumers from unwanted
  wireless messages
• Paid Emails

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???
Open Questions

• Fax
• A. Can I still be sued?
• B. What are potential fines?
• C. Can permission be obtained via email?
• D. What information must be disclosed when
  faxing?
• Email
• What are the potential fines?
• How must I handle email list rental?
• Do I have to have an established business
  relationship?
• If a recipient opts-out from a circulation
  effort, does that imply they have opted-out from
  all messages from my organization?

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Thank you.