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A few comments ...
Posted By: John Glube In Response To: An internesting question for John Glube - Is this the solution? (Josh Anderson)
Date: Tuesday, 13 April 2004, at 9:43 a.m.
Hi Josh,
A couple of comments.
* Do not blame the FTC for this mess. Responsibility lies primarily with the marketing community and in particular with those who allowed the Direct Marketing Association to take the lead on the whole issue, going back to around the turn of the century.
Why do I say this? In essence, the DMA has for some time advocated unsolicited bulk email as a valid approach to direct marketing online. True the position was refined to suggest a distinction between unsolicited non-fraudulent bulk commercial email (being good in the DMA's eyes) and unsolicited fraudulent bulk commercial email being bad.
The DMA's position rests on the pedestal of commercial free speech. However, the underlying premise behind the DMA's position is flawed. In the offline world, the sender bears the cost of direct marketing mail. In the online world, the recipient and the ISP's bear the cost of receiving unsolicited bulk email.
Marketers in the online word bear a responsibility to not only send marketing messages which are in compliance with the advertising guidelines, but also need to participate in the online community in a responsible fashion. In the arena of direct marketing email this means getting consent from the recipient. Otherwise direct marketers are abusing the privilege of using Internet access to advertise.
I write privilege because Internet access is not a right. Even though Internet access services are regulated by the FCC, since the early 1990's it has been stated public policy the FCC will take a hand's off approach, leaving access issues, terms of use, etc up to individual ISP's – aka normal contract law.
For more on this issue people may wish to read the following post:
http://ablake.net/forum/index.cgi?read=169110
and the related thread.
* I examined the approach you are suggesting back in October, 2003 in dealing with the pending deadline viz the EU legislation, along with the likelihood marketers would either be confronted with a California or a Federal solution in the United States and dealt with the issue at length in some posts I made to a private member's forum.
Subsequently, I alluded to it in my article "The Death of Email Marketing" which people can find at http://www.learnsteps4profit.com/antispam.html and also commented on this idea in the article "The Federal Regulators Are Coming To Town" published in December, 2003 after Congress passed the final version of the Act, found at http://www.learnsteps4profit.com/antispamfr.html.
There are a number of problems with the suggested approach for the publishers of free newsletters:
* The need to obtain affirmative consent occurs at the time the person subscribes to receive your message, not subsequently.
(See the definition of affirmative consent as found in sub-section 3 (1) of the Act - http://www.learnsteps4profit.com/antispamus.html)
* How do you define a commercial electronic email message?
(see the definition of commercial email as found in sub-section 3 (2) of the Act - http://www.learnsteps4profit.com/antispamus.html)
By sending a message which contains a link to a web page which includes promotional material is "the primary purpose of the message the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose)?"
(I have included the language used in paragraph (A) of the definition.)
On balance, given Congress and the FTC do not want to create any "loop holes" for spammers, it is my view, the FTC in writing the rules setting out primary purpose will give the widest possible meaning to this phrase, so as to sweep everything into the commercial email bucket, unless it is specifically excluded as a transactional or relationship message.
Therefore an email directing people to go to "content on a web site operated for a commercial purpose" will likely fall as a commercial email.
The only way to get around the particular issue you talk about is if people can establish a specific exemption. And I have been told straight from the horses mouth, the case needs to be strongly made.
I am aware that the large trade associations, like the Insurance industry, recognizing this issue are lobbying quite hard to have messages sent to their members treated as transactional messages and so be exempt from the opt-out regulatory regime.
(Congressman Burr - one of the co-sponsors of the original House bill - was persuaded to make a statement in the House on this point in January. Unfortunately, his statement is flawed, being premised on the original bill as passed by the Senate and not the Act.)
Logically there is no difference in the position taken by the large trade associations and the position I am suggesting be put forward for e-publishers.
(The under pinning of the suggested exemption by the Insurance industry is you are not sending email to the public at large, but only to members. Well, there is no different between that position and e-publishers who only send email to subscribers who have granted affirmative consent.)
However, it is not appropriate for the micro-business community to throw its lot in with the big players.
Why? Our interests are different and the justification for an exemption is different.
The best position is to have the FTC become the advocate for the micro-business community. But this can only happen in part if sufficient numbers of people post their concerns.
Hence the reason for my posting the article "The FTC Wants To Hear From You" and the various posts I have made since March 11, 2004.
I appreciate many people reading these posts can't believe what I am saying could possibly happen.
Some think, this guy is dead wrong. The reader must understand. I have no vested interested in my position. I would much prefer to be dead wrong.
All I have done is applied my skill and talent to a particular exercise. If nothing is done, it is my considered opinion, when the rules come down, the poop will hit the fan.
The bottom line? The time for debate is over. I don’t know about the reader, but I am not prepared to run my business on the basis of wishful thinking or trick solutions.
With potential fines running up to $16,000 per email if the FTC prosecutes, the risk is too great.
(That's right - the statutory damages of $250 a pop only apply if a State attorney general prosecutes.)
And believe me once some of the big fry are put to bed, just as happened with the truth in advertising guidelines for online advertising, the FTC will eventually go after the little fish.
Let me put it this way.
I had a specific debate with someone on this whole issue in late March. It was put to me,” but this is not what the Senate Committee said or intended when recommending the original bill to the Senate. “
My response?
“Yep, but the bill spoken of by the Senate Committee did not get passed by Congress. Remember, the definition for unsolicited commercial electronic mail message and implied consent was removed. This makes a significant difference in how you read the legislation.
Furthermore, I don’t see specific language in the Act which supports what you say.
So, if you want that exemption, you better either have it in the rules or the related guidance documents put forward by the FTC, or forget it.”
The community as a whole needs to spread the word. There remains time. The deadline for filing comments is April 20, 2004.
Kind regards,
John Glube
Toronto, Canada
The FTC Wants To Hear From You
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