Why should you care? Well do you publish an e-zine, newsletter or journal and use email to deliver your publication to your subscribers?

Then how the FTC writes the rules can have a significant bearing on how you run your business.

Let me give you some examples.

Implications Of The Act

As matters stand today, being conservative in one's interpretation of the Act, a free e-zine, supported by advertising and published by e-mail is generally considered to be a commercial email.

If this interpretation stands, it means among other things:

* You want to have affirmative consent from your subscribers;

* You have to comply with the suppression rules; and,

* You must include the address of all the advertisers in each issue.

Many consider this to be overly burdensome. Some have suggested the intended purpose of the legislation is not to regulate content based e-zines.

A Proposed Solution

The FTC is required to publish rules to further define the meaning of a commercial email message.

If appropriate, the FTC can adjust the meaning given to the phrase transactional or relationship messages.

To allow the FTC to have the greatest possible reach in pursuing those who violate the specific prohibitions in the Act, it makes sense to give the phrase commercial electronic mail message a broad and inclusive meaning.

Also, to ensure the exemption for transactional or relationship messages does not become abused, if people start to include advertising in the message, it only seems logical to suggest, if a transactional or relationship message includes advertising, the message should be deemed to be a commercial email.

But to recognize the unique position of publishers of affirmative consent content based e-zines who also follow generally accepted practices, why not suggest the FTC use its rule making authority to create a specific exception and treat these e-zines as transactional messages?

There is a reasonable justification for this exemption. However the case must be strongly made to have any likelihood of success.

Simply put, the underlying thrust of the Act is to prohibit what many consider the worst forms of abusive email marketing practices and provide reasonably strong remedial powers.

Obviously, a publisher of an affirmative consent content based e-publication who follows generally accepted practices (an "e-newsletter") does not fall within this category.

Also, if e-newsletter publishers are required to fully comply with the suppression rules this will likely impose an unfair and inappropriate financial burden. The suppression rules were created to meet the criteria of running an opt-out mailing list. This involves an entirely different set of criteria than someone running an affirmative consent mailing list.

Further, it makes no sense to require publication of the contact addresses for the various advertisers in an e-newsletter.

For these reasons, one can strongly suggest e-newsletters be treated as transactional messages, as the publisher in sending the e-newsletter to subscribers is providing the agreed service, a free or paid publication supported in many cases by advertising.

One point. Can the sending of what are commonly called solo advertisements be exempted as a transactional message? A solo advertisement sent with affirmative consent is clearly commercial email. Does the justification to exempt these messages stretch the limit?

Or is it better to say a solo advertisement is merely part of the service the subscriber agrees to receive upon granting affirmative consent, presuming there is proper disclosure at the time of subscribing?

Hey, this is why it is important to speak up now and put forward your views.

What Are Generally Accepted Practices?

You might ask - what are generally accepted practices? Now comes the risky part.

The answer will vary depending on whom is answering the question.

In April 2001, a body known as the Internet Engineering Task Force (IETF) published a guide titled:

How to Advertise Responsibly Using E-Mail and Newsgroups or - how NOT to $$$$$ MAKE ENEMIES FAST! $$$$$"

Within this document you will find a set of suggested practices for email advertising, including the need for the marketer to send out a confirmation notice to a subscriber, confirming the subscription.

This is not the same as requiring a subscriber to confirm his or her request to subscribe, sometimes called "double opt-in," which is a higher standard of behavior. Some may argue RFC 3098 in not requiring this form of verifiable method of confirmed subscription by the subscriber is not sufficient.

As many know, the practice of requiring the subscriber to confirm his or her subscription is somewhat controversial among marketers and even subscribers.

In proposing the standard suggested by RFC 3098 as a minimum standard, this reflects a compromise position, allowing those who wish to use the higher standard to do so, without penalizing those publishers who have relied on this standard in managing their affairs.

Why should this document be considered as a standard by the commercial community?

To have a full understanding of the role of the IETF and what are commonly called requests for comment or RFC you will want to read a document titled:

The Tao of IETF: A Novice's Guide to the Internet Engineering Task Force - RFC 3160 published August 2001

In short the IETF is a large open international community of network designers, operators, vendors, and researchers concerned with the evolution of the Internet architecture and the smooth operation of the Internet. Membership is open to any interested individual.

The actual technical work of the IETF is done in working groups, which are organized by topic into several areas (e.g., routing, transport, security, etc.).

The IETF develops protocols through a Request For Comment process, or RFC for short. Any member can put together a proposal to deal with a particular issue involving network policy issues.

The proposal is then published and distributed (as the IETF operates through mailing lists). People are asked to comment on the draft. If the proposal has merit, a working group is set up to steer the proposal through the process. Ultimately, after everyone has had their say, presuming the Request for Comment has merit; it is adopted as a standard and then assigned a number.

Most of the proposals are of a technical nature. However, over the years, the IETF has adopted three relevant standards for the commercial community:

Netiquette Guidelines - RFC 1855 published October 1995

Don't Spew - RFC 2635 published June 1999

How to Advertise Responsibly Using E-Mail and Newsgroups or - how NOT to $$$$$ MAKE ENEMIES FAST! $$$$$ - RFC 3098 published April 2001

Read these documents. It is worth the time. You might say these documents as a whole can be considered a guide to good practice for conducting oneself on the Internet.

Not being beholden to any particular interest group, but rather reflecting a genuine effort to set appropriate standards of behavior is the underlying reason why RFC 3098 is a good basis for a working standard.

Needless to say, since the publication of RFC 3098 in April, 2001, the problems associated with unsolicited bulk email have gotten far worse.

As Congress has seen fit to pass a law to regulate e-mail marketing, it is appropriate the suggested acceptable standard also include the need for affirmative consent as defined in the Can Spam Act of 2003.

My Sources

The bottom line? The positions put forward in this article reflect my thoughts on the many discussions I have had over the last number of months with a variety of people concerning the potential negative impact of the Can Spam Act on publishers of e-newsletters.

This includes holding a lengthy interview with Katie Harrington-McBride, one of the FTC staff attorneys responsible for implementing the Can Spam Act of 2003.

I am grateful for the time spent by Ms. McBride in assisting me in understanding the process and giving me a glimpse into the thinking of Commission staffers on the whole process.

Of course, the positions expressed in this article are mine and needless to say others may hold different views.

Also, a heartfelt thanks goes out to Paul Myers of TalkBiz News, author of The Amazing List Machine for graciously providing an excellent sounding board, to Ed Thorpe of Home Grown Biz Advocate, author of Co-Reg-List-Building-Secrets System for his kind encouragement and last but not least jl scott, PhD of the International Council of Online Professionals for inviting me along with Dawn River Baker of the Microenterprise Journal to assist i-Cop™ in formulating its submission to the Commission so helping me to formulate my own thoughts and her continuous encouragement of my efforts.

Whatever your perspective, now is the time to voice your position, since the FTC is asking for your comments.

Additional Issues

Here are some other potential issues for people to consider:

* The FTC has been asked to inquire into the possibility of setting up what is commonly called a "Do-Not-Email-Registry." It is fair to say, this is an "open issue."

The FTC has to submit a report to Congress and was seeking comment on this issue prior to March 31, 2004. In fairness I did post a reference to this issue in many of the major online marketing forums shortly after the FTC’s public notice was released on March 11, 2004.

Under the Act, depending on the results of this inquiry, the FTC has authority to proceed with the implementation of a Registry system.

Since this will likely become a political issue, follows are some of the issues you may wish to comment on to your elected representative:

* How would registering one or more of my email addresses stop people from sending me unsolicited commercial bulk email who forge header information, use deceptive subject lines and don't respect opt-out requests?

* How can the Commission totally secure the Registry from hackers?

* How will the Commission ensure those marketers who have developed "affirmative consent" mailing lists are not prejudiced by the implementation of a registry system and what about legacy lists?

* If a Registry system is implemented, since we can only have one "enforcer," is it appropriate for private black list services (that have a business relationship with email deliverability vendors, like Bonded Sender and Habeas) to be subject to the regulatory authority of the FTC, so ensuring fair practice and due process?

Of course, I understand the view held by many:

* If the FTC implements a registry system, it would de facto convert the opt-out regime under the Can Spam Act into an opt-in regime, since most people would proceed to register their email address.

Underlying these questions is a couple of fundamental issues:

* Is a Do-Not-Email-Registry an effective way of stopping unsolicited bulk e-mail, compared to dealing with the security issues in the Simple Mail Transfer Protocol?

* Will the roll out of IPv6 make the issue moot, given the enhanced security options available?

* If a Registry system is going to happen, how can a Do-Not-Email-Registry be implemented so as to stop the innocent "killings" of "affirmative consent" e-marketers by the Internet service providers in the ongoing war with those who send unsolicited bulk mail?

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