[Federal Register Volume 69, Number 75 (Monday, April 19, 2004)]
[Rules and Regulations]
[Pages 21024-21034]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-8679]



[[Page 21023]]

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Part III





Federal Trade Commission





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16 CFR Part 316



Label for E-mail Messages Containing Sexually Oriented Material; Final 
Rule

  Federal Register / Vol. 69, No. 75 / Monday, April 19, 2004 / Rules 
and Regulations  

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FEDERAL TRADE COMMISSION

16 CFR Part 316

RIN 3084-AA96


Label for Email Messages Containing Sexually Oriented Material

AGENCY: Federal Trade Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Federal Trade Commission (``FTC'' or 
``Commission'') issues its Final Rule pursuant to the Controlling the 
Assault of Non-Solicited Pornography and Marketing Act of 2003 (``CAN-
SPAM Act'' or ``the Act'').\1\ Section 7704(d) of the Act requires the 
Commission, within 120 days of the date of the enactment of the CAN-
SPAM Act, to prescribe a mark to be included in commercial electronic 
mail (``email'') that contains sexually oriented materials.
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    \1\ Pub. L. 108-187 (codified at 15 U.S.C. 7701 et seq.).

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EFFECTIVE DATE: The Rule will become effective on May 19, 2004.

ADDRESSES: Requests for copies of the Rule and the Statement of Basis 
and Purpose should be sent to Public Reference Branch, Room 130, 
Federal Trade Commission, 600 Pennsylvania Avenue, NW., Washington, DC 
20580. Copies of these documents are also available at the Commission's 
Web site, http://www.ftc.gov.

FOR FURTHER INFORMATION CONTACT: Jonathan Kraden, (202) 326-3257, 
Division of Marketing Practices, Bureau of Consumer Protection, Federal 
Trade Commission, 600 Pennsylvania Avenue, NW., Washington, DC 20580.

SUPPLEMENTARY INFORMATION: The Rule implements the requirements of the 
CAN-SPAM Act by requiring that any person who initiates, to a protected 
computer, the transmission of a commercial email that includes sexually 
oriented material must: (1) Exclude sexually oriented materials from 
the subject heading and include in the subject heading of that email 
the mark ``SEXUALLY-EXPLICIT: ''; and (2) provide that the matter in 
the email message that is initially viewable when the message is opened 
include only certain specified information, not including any sexually 
oriented materials. The Rule also exempts situations where a recipient 
has given his or her prior consent to receipt of a sexually oriented 
message; clarifies that certain terms taken from the Act and appearing 
in the Rule have the definitions prescribed by particular referenced 
sections of the Act; and includes a severability provision that 
provides that if any portion of the Rule is found invalid, the 
remaining portions will survive.

Statement of Basis and Purpose

I. Introduction

    As expressly set forth in Section 7701(a)(5) of the CAN-SPAM Act, 
Congress found that ``some commercial email contains material that many 
recipients may consider vulgar or pornographic in nature,'' \2\ and 
this finding, in part, prompted passage of this legislation. Congress' 
finding reflects the serious concern of large segments of the 
population regarding the sexually explicit material that is often 
included in email messages. A recent survey of computer users found 
that ``when asked to identify the type of content that bothers [email] 
users most * * * pornography exceeds all others, by nearly four times 
more than any runner-up.'' \3\
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    \2\ 15 U.S.C. 7701(a)(5).
    \3\ Deborah Fallows, Spam: How It Is Hurting Email And Degrading 
Life On The Internet, Pew Internet & American Life Project, October 
22, 2003 available at www.pewinternet.org/reports/toc.asp?Report=102. (``Among the types of spam that are out there, 
users were most bothered by pornography (53%), followed by pitches 
for products and services (14%), and investment deals and financial 
offers (11%).''). (emphasis in original).
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    To combat this problem, Congress included Section 7704(d) in the 
CAN-SPAM Act. This section of the Act directs the FTC to prescribe 
``clearly identifiable marks or notices to be included in or associated 
with commercial electronic mail that contains sexually oriented 
material, in order to inform the recipient of that fact and to 
facilitate filtering of such electronic mail.'' \4\ The Act also 
requires that any person who initiates a commercial email that contains 
sexually oriented material: (1) Include the mark prescribed by the 
Commission in the ``subject heading for the electronic mail message;'' 
\5\ and (2) include only the following information in the initially 
viewable matter of the message: (i) The Commission's prescribed mark; 
\6\ (ii) identifier, opt-out and physical address information; \7\ and 
(iii) instructions on how to access the sexually oriented material.\8\
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    \4\ 15 U.S.C. 7704(d)(3).
    \5\ 15 U.S.C. 7704(d)(1)(A).
    \6\ 15 U.S.C. 7704(d)(1)(B)(i).
    \7\ 15 U.S.C. 7704(d)(1)(B)(ii) referencing section 7704(a)(5) 
of the Act.
    \8\ 15 U.S.C. 7704(d)(1)(B)(iii).
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    Pursuant to its mandate under section 7704(d) of the Act and its 
authority under section 7711(a) of the Act,\9\ and after extensive 
consultation with the Department of Justice, the Commission published a 
Notice of Proposed Rulemaking (``NPR'') in the Federal Register on 
January 29, 2004.\10\ The NPR sought comment on a number of issues, 
including: The effectiveness of the Rule in aiding recipients to 
recognize, and computers to filter, e-mails that contain sexually 
oriented materials; any technical considerations that would affect the 
implementation of the Rule; other marks that would be more effective in 
achieving the objectives of the Act; and the effect of the Rule on 
business entities, including small business entities.
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    \9\ Section 7711(a) of the Act grants the Commission broad 
rulemaking authority. The pertinent portion of Section 7711(a) 
states that ``the Commission may issue regulations to implement the 
provisions of this Act.'' 15 U.S.C. 7711(a).
    \10\ 69 FR 4263 (Jan. 29, 2004).
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    In response to the NPR, the Commission received eighty-nine (89) 
comments from a wide array of interested parties. The commenters 
included private individuals, technologists, public interest 
organizations, and representatives of state and federal agencies. Based 
upon the entire record in this proceeding, the Final Rule adopted by 
the Commission is similar to the Proposed Rule. However, the Final Rule 
contains some important changes from the Proposed Rule. These 
modifications are based upon the recommendations of commenters and 
careful consideration of relevant First Amendment case law.
    The comments received in response to the NPR addressed three broad 
topics. First, many commenters emphasized their distress at the problem 
the Proposed Rule is designed to remedy, and generally expressed 
support for the Commission's proposal. The comments from individuals 
overwhelmingly supported the requirement that sexually oriented e-mail 
messages be labeled.\11\ A typical commenter stated ``[p]lease, please, 
please do something to protect us and our children from the junk'' and 
wrote that she receives more than one hundred (100) pornographic spam a 
day that ``disguise what the content of the e-mail is about'' so that 
``when you open it, [you are] bombarded with nude photos of people 
having intercourse.'' \12\
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    \11\ A list of the comments and the names used to identify each 
commenter is attached hereto as Appendix A. References to comments 
are cited by the commenter's name followed by the appropriate page 
designation.
    \12\ Halliwell.
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    Individual commenters favored the proposed requirements for a 
number of reasons. Several believed that labeling will help protect 
children from exposure to objectionable materials.\13\

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Others welcomed the opportunity to have some control over their e-
mail.\14\ Several commenters expressed frustration that, despite their 
repeated efforts, they are unable to block and filter these 
messages.\15\ In addition, commenters agreed that the Commission's 
proposed mark (``SEXUALLY-EXPLICIT-CONTENT:'') in the subject line of 
an e-mail message would effectively alert them that an e-mail contains 
sexually oriented materials. Ultimately, the consensus of the great 
majority of commenters can be summed up by one comment: ``Anything you 
can do to limit porn spam would be so gratefully appreciated by my 
entire household. I've had to close e-mail accounts because they 
completely choke out normal mail.'' \16\
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    \13\ See, e.g., Gregg (``Not only do these sexually oriented e-
mail not identify their content, and seek to fool the recipient with 
false information about forwards and returns, but they contain words 
which my children find appealing. My children are just reaching the 
age where they are starting to e-mail their friends, and I would 
like to be able to protect them as best I can from inappropriate and 
offensive material.'') See also Lieberg.
    \14\ See, e.g., Bordeaux (The Rule ``will give the general 
public some control over what they read * * * Nowhere else in 
society am I basically forced to look at content I don't desire to 
see. Pornography magazines at least have covers, satellite 
broadcasts have subscriptions and controls, but the inbox has had 
very little ability to actually give control over such content.''). 
See also Cooper; Wandasoup; and Manion.
    \15\ See, e.g., Kautz (``I have built special rules into my e-
mail messaging, activated spam blockers and done whatever I could to 
block these unwelcome messages, only to have them sneak through 
anyway. I even changed my high speed Internet access provider hoping 
to avoid such disgusting material. Nothing helps.''). See also Potts 
(``On a daily basis I go through 5 different e-mail accounts 
deleting [adult content] e-mails. Two of those mail accounts are for 
my 12 and 13 year old daughters. Even with spam filters it does not 
catch a vast majority of these e-mails. It is very frustrating * * * 
.'').
    \16\ Sunlemming.
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    The second broad topic addressed by commenters is the First 
Amendment implications of the Proposed Rule. The Commission's 
assessment of the various First Amendment arguments advanced has direct 
bearing on the ultimate form of the Final Rule. Discussion of First 
Amendment concerns precedes the section-by-section analysis of the 
Rule. The third broad topic touched on by a number of commenters 
related to technical aspects of the Commission's proposal, such as the 
character set to be used for the mark, placement of the mark, and 
implementation of an ``initially viewable'' area that is free of 
sexually oriented materials. These comments will be discussed in the 
section-by-section analysis, which follows the discussion of First 
Amendment concerns, immediately below.

II. First Amendment Concerns

    The Commission received a comment from the Center for Democracy and 
Technology (``CDT'') questioning the constitutionality of the Rule 
under the First Amendment.\17\ CDT cites no cases and provides no 
systematic analysis to support its assertion that the Rule is fatally 
flawed ``because of the burdens the proposed label will place on 
senders of constitutionally protected e-mail.'' \18\
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    \17\ CDT at 1 (stating, in answer to the Commission's question 
about potential conflict with other laws, ``there is indeed a very 
important federal rule that conflicts with the proposed labeling 
requirement, namely the First Amendment to the Constitution.'').
    \18\ Id.
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    CDT first argues that the Rule does not directly advance a 
substantial governmental interest,\19\ because it will ``address only 
spam originating in the United States,'' and because the Rule ``will 
likely not be enforceable against off shore spammers.'' \20\ However, 
CDT's assertion is incorrect. Spammers operating from abroad but 
targeting United States residents are, in fact, subject to the 
requirements of the Rule and are subject to law enforcement actions in 
the United States for any violations of the Rule. Under the CAN-SPAM 
Act, a violation of the Rule is enforceable as if it were an unfair or 
deceptive act or practice under the FTC Act.\21\ The FTC Act has often 
been used to obtain relief from foreign defendants.\22\ Thus, where 
foreign spammers aim their campaigns at residents of the United States 
(and constitutional ``minimum contact'' requirements for jurisdictional 
purposes are met), such spammers are subject to legal action under the 
Rule in the United States.
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    \19\ Id. This is one of the elements of Central Hudson Gas & 
Elec. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557 (1980).
    \20\ Id.
    \21\ 15 U.S.C. 7706(a), (d).
    \22\ See, e.g., FTC v. Domain Registry of America, Inc., No. 03-
CV-10075 (S.D.N.Y. 2003); FTC v. 1268957 Ontario Inc. et al., No. 
01-CV-0423 (N.D. Ga. 2001); FTC v. Growth Plus Int'l Marketing, 
Inc., No. 00C-7886 (N.D. Ill. 2000); FTC v. Verity Int'l, Ltd., 124 
F. Supp. 2d 193 (S.D.N.Y. 2000); FTC v. Carlos Pereira et al., No. 
99-1367-A (E.D. Va. 1999); FTC v. The Tracker Corp. of America, No. 
97-CV-2654-JEC (N.D. Ga. 1998); FTC v. 9013-0980 Quebec Inc., No. 
1:96CV-1567 (N.D. Ohio 1996); and FTC v. Ideal Credit Referral 
Servs. Ltd., C96-0874R (W.D. Wash. 1996). See also, FTC v. BTV 
Industries et al., No. CV-S-02-0437-LRH (D. Nev. 2002); FTC v. 
Benoit (a.k.a. One or More Unknown Parties), No. 3:99 CV 181 
(W.D.N.C. 1999).
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    CDT also argues that the Rule is unconstitutional because domestic 
spammers will not comply with it.\23\ The constitutionality of the Rule 
can not rest on the belief that the Rule will not be obeyed. The 
Commission does not believe that, simply because the government may not 
be able to stop sexually explicit spam, it must sit idly by as its 
citizens are exposed to objectionable materials that are being forced 
into their homes. The First Amendment does not require that the 
government ``make progress on every front before it can make progress 
on any front.'' \24\ As the Supreme Court noted in Edge Broadcasting 
Co., ``[w]ithin the bounds of the general protection provided by the 
Constitution to commercial speech, [the Court] allow[s] room for 
legislative judgments.'' \25\
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    \23\ CDT at 1 (noting that ``domestic spammers are notoriously 
elusive and not distinguished by their compliance with the law.'').
    \24\ United States v. Edge Broad. Co., 509 U.S. 418, 434 (1993).
    \25\ Id.
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    CDT also argues that the Rule offends the First Amendment because 
it will ``prevent senders of lawful material from reaching willing 
recipients'' because ``it is designed to promote filtering by the ISPs 
and takes control away from the end user. Ideally, mechanisms to reduce 
spam should be modeled on a user empowerment approach, wherein the 
user, taking advantage of filtering software on her computer, is the 
ultimate arbiter of what content she receives.'' \26\
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    \26\ CDT at 2.
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    The Commission believes this argument cannot bear close scrutiny. 
The fact that the prescribed mark may facilitate filtering does not 
necessarily cede to Internet Service Providers (``ISPs'') the choice of 
whether to receive e-mail messages containing sexually explicit 
material. Rather, such filtering promotes opportunity for greater 
consumer choice. The marketplace is remarkably flexible, and one would 
expect that, if consumers desire choice, some ISPs would offer their 
subscribers individual choice in the matter of filtering, or that some 
ISPs would provide filtering to all subscribers while others would 
cater to individuals who want to receive sexually explicit e-mail 
messages without filtering. Simply because the mark facilitates 
filtering does not mean that filtering will be ubiquitous, or that 
consumers will not be able to exercise individual choice in the matter 
of receiving sexually explicit commercial e-mail messages.
    Finally, CDT argues that the Rule is unconstitutional because it 
would serve as a ``prohibition against including lawful sexually 
oriented material directly in a commercial e-mail.'' The Final Rule, 
however, does not prohibit or suppress any speech. The Rule does not 
prevent senders of sexually explicit e-mail from sending their messages 
or

[[Page 21026]]

selling their products. Nor does it prevent or encumber a willing 
recipient from receiving these messages. The Rule merely directs where 
and how materials may be presented in a manner that is easily 
accessible to all who wish to view these materials, yet unobtrusive to 
those who prefer not to receive them. The Rule does not place the e-
mail recipient who wishes to view such materials at any disadvantage as 
compared to the e-mail recipient who does not wish to view them. Each 
person is only a mouse click away from his or her desired result. To 
that extent, the Rule facilitates commercial speech, by helping to 
ensure that people are willing recipients of the e-mail messages that 
are being sent. The Commission respectfully disagrees with the CDT and 
believes that the Final Rule is a constitutionally permissible 
regulation of commercial speech.
    The CAN-SPAM Act applies only to commercial email messages.\27\ In 
Central Hudson Gas & Electric Corp. v. Public Service Commission of New 
York, the Supreme Court established the applicable analytical framework 
for determining the constitutionality of a regulation of commercial 
speech that is not misleading and does not otherwise involve illegal 
activity.\28\ Under that framework, the regulation: (1) Must serve a 
substantial governmental interest; (2) must directly advance this 
interest; and (3) is not more extensive than necessary to serve the 
government's interests \29\--that is, there must be ``a `fit' between 
the legislative ends and the means chosen to accomplish those ends * * 
* a fit that is not necessarily perfect, but reasonable * * * that 
employs not necessarily the least restrictive means but * * * a means 
narrowly tailored to achieve the desired objective.'' \30\
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    \27\ The Final Rule applies only to the initiation of a 
``commercial email message,'' which is defined in the Act as ``any 
electronic mail message the primary purpose of which is the 
commercial advertisement or promotion of a commercial product or 
service.'' See 15 U.S.C. 7702(2)(a) (emphasis supplied). The Act 
mandates that the Commission conduct notice and comment rulemaking 
for the purpose of ``defining the relevant criteria to facilitate 
the determination of the primary purpose of an electronic mail 
message.'' See 15 U.S.C. 7702(2)(c). Accordingly, the Commission has 
recently published an Advanced Notice of Proposed Rulemaking on this 
issue. Pending completion of this proceeding, the interpretation of 
``commercial email message'' looks to the core notion of commercial 
speech as developed in applicable case law: commercial speech is 
``speech that proposes a commercial transaction.'' Board of Trustees 
of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989) (emphasis in 
original). See also Virginia Pharmacy Bd. v. Virginia Citizens 
Consumer Council, Inc., 425 U.S. 748, 762 (quoting Pittsburgh Press 
Co. v. Human Relations Comm'n, 413 U.S. 376, 385 (1973)); Bolger v. 
Youngs Drug Prods. Corp., 463 U.S. 60, 66 (1983).
    \28\ 447 U.S. 557 (1980). For purposes of this analysis only, 
the Commission assumes that the content of the emails in question 
are at worst indecent and therefore constitutionally protected under 
the First Amendment. This assumption is based on the fact that the 
definition of sexually oriented materials under the Act covers 
speech that may be merely indecent (which is protected speech under 
the First Amendment) and not necessarily obscene (which is not 
protected speech under the First Amendment). See Sable 
Communications v. FCC, 492 U.S. 115, 126 (1989).
    \29\ Central Hudson at 566.
    \30\ Board of Trustees at 480.
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    The Final Rule serves to advance two substantial government 
interests: (1) protecting the privacy right of individuals to be free 
from unwanted and unwelcome commercial intrusions into their homes, and 
(2) supporting parental supervision of the materials to which their 
children are exposed.
    The government has a substantial interest in protecting the privacy 
of individuals in their homes. In Rowan v. Post Office Dept., the 
Supreme Court upheld a federal statute empowering a homeowner to bar 
mailings from specific senders by notifying the Postmaster General that 
he/she wished to receive no further mailings from that sender.\31\ The 
Court stated:
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    \31\ 397 U.S. 728 (1970).

We therefore categorically reject the argument that a vendor has a 
right under the constitution or otherwise to send unwanted material 
into the home of another. If this prohibition operates to impede the 
flow of even valid ideas, the answer is that no one has a right to 
press even ``good'' ideas on an unwilling recipient. That we are 
often ``captives'' outside the sanctuary of the home and subject to 
objectionable speech and other sound does not mean we must be 
captives everywhere. The asserted right of a mailer, we repeat, 
stops at the outer boundary of every person's domain * * *. To hold 
less would tend to license a form of trespass and would make hardly 
more sense than to say that a radio or television viewer may not 
twist the dial to cut off an offensive or boring communication and 
thus bar its entering his home. Nothing in the Constitution compels 
us to listen to or view any unwanted communication, whatever its 
merit; we see no basis for according the printed word or pictures a 
different or more preferred status because they are sent by mail. 
The ancient concept that ``a man's home is his castle'' into which 
``not even the king may enter'' has lost none of its vitality, and 
none of the recognized exceptions includes any right to communicate 
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offensively with another.\32\


    \32\ Id., at 737-38 (internal citations omitted).
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    The special protection extended to an individual's home was again 
stressed by the Supreme Court in Frisby v. Schultz, noting that ``the 
State's interest in protecting the well-being, tranquility, and privacy 
of the home is certainly of the highest order in a free and civilized 
society.'' \33\ ``Individuals are not required to welcome unwanted 
speech into their own homes and the government may protect this 
freedom.'' \34\
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    \33\ 487 U.S. 474, 484 (1988) (quoting Carey v. Brown, 447 U.S. 
455, 471 (1980)). See also Mainstream Mktg. Servs. v. FTC, 2004 U.S. 
App. LEXIS 2564, citing Frisby.
    \34\ Frisby at 485.
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    The Rule also advances the government's interest in supporting 
parental supervision over the materials to which children are 
exposed.\35\ In upholding a state statute that prohibited sales to 
minors of material not defined as obscene for adults, the Supreme Court 
stated in Ginsberg v. New York that the government's interest in the 
``well-being of its youth'' and in supporting ``parents' claim to 
authority in their own household'' justified the regulation of 
otherwise protected expression.\36\
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    \35\ See S. Rep. No. 102, 108th Cong., 1st Sess. at 6 (2003) 
(demonstrating Congress' concern that: ``[u]nsuspecting children who 
simply open emails with seemingly benign subject lines may be either 
affronted with pornographic images in the email message itself, or 
automatically and instantly taken * * * to an adult web page 
exhibiting sexually explicit images.''). See also id. at 7 (noting 
that spam with pornographic content or links to websites with 
pornographic content, are also common and place ``additional burdens 
on parents to constantly monitor their children's email (even when 
they are already using an ISP's ``parental controls'')). In 
addition, when called to speak about CAN-SPAM, several Senators 
specifically referred to the government's interest in supporting 
parental supervision over the materials to which children are 
exposed. See 149 Cong. Rec. S13,025 (daily ed. Oct. 22, 2003) 
(statement by Senator Schumer: ``[I]f parents can control what their 
kids watch on TV, they should be able to control what their children 
are exposed to on the Internet.''). See also id. at 13036 (statement 
by Senator Enzi that the Act ``takes an important step in protecting 
Internet and email users, especially minors, from receiving sexually 
explicit, offensive and unwanted content in their emails.'').
    \36\ 390 U.S. 629 (1968).
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    The comments the Commission received in response to the NPR 
demonstrate that sexually explicit email messages encroach upon 
individuals' right to privacy in their own homes.\37\ Furthermore, it 
is axiomatic, and confirmed by the record, that a substantial number of 
people find unwanted sexually oriented email to be offensive and, given 
the opportunity, would shield minors from exposure to such 
materials.\38\ By requiring the

[[Page 21027]]

prescribed mark in the subject line and in the immediately viewable 
area of the email message, the Rule will aid email recipients to filter 
or delete this material without viewing it, thus advancing these 
legitimate government interests. In addition, the Rule's requirement 
for including the opt-out and other disclosures in the initially 
viewable area will enable unwilling recipients to avoid future exposure 
to such email messages. Finally, the requirement to exclude sexually 
oriented materials from the subject line of an email message, and to 
include only certain information in the ``initially viewable'' portion 
of an email message helps shield individuals and children from exposure 
to depictions of graphic sexual materials.
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    \37\ See, e.g., Bordeaux; Manion; Roth; Gannon.
    \38\ See, e.g., Potts; Giddens; Andre; Gregg. See also, National 
Consumers League (citing an online survey about spam conducted in 
late 2003 by the Trans Atlantic Consumer Dialogue (``TACD''), a 
coalition of 65 consumer organizations from the United States and 
European Union countries, that ``92 percent of the U.S. respondents 
said that unsolicited commercial emails characterized as ``adult/
porn'' were the most objectionable or upsetting to receive * * *.'' 
Report of TACD's Online Survey on Spam, Oct.-Dec. 2003, available at 
http://www.tacd.org/docs/?id=225.).
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    A reasonable fit exists between the requirements of the Final Rule 
and the government's interests if the Rule directly advances those 
interests and is narrowly tailored.\39\ In this context, the ``narrowly 
tailored'' standard does not require that the government employ the 
least restrictive means to protect the substantial interests mentioned 
above. All that is required is a proportional response.\40\
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    \39\ Central Hudson at 564-65.
    \40\ Board of Trustees at 480.
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    The Commission believes that the requirements of the Final Rule are 
narrowly tailored to fit the interests at stake. The Rule does not 
forbid or suppress any speech. In fact, the Rule expressly allows 
senders to include instructions in the email's ``initially viewable'' 
area on how to access the sexually explicit material. Further narrow 
tailoring of the Rule's impact has been achieved through the ``prior 
consent'' exclusion in Sec.  316.1(b). This provision places outside 
the Rule's scope of coverage any email message sent with the 
recipient's prior affirmative consent to receive the sender's sexually 
oriented messages. Thus, the Rule covers no more email messages than 
necessary to achieve its purpose, and merely restricts the place and 
manner where sexually explicit content included in commercial emails 
may be presented. In this way, the Rule permits sexually explicit email 
messages while protecting potentially unwilling recipients from 
unwelcome speech invading their own homes.
    In addition, the Commission has further narrowed the length of the 
prescribed mark to encroach as little as possible on space available 
for senders' messages, consistent with achieving the Rule's purposes. 
As originally proposed, the Rule required that commercial email 
messages that contain sexually oriented materials include the phrase 
``SEXUALLY-EXPLICIT-CONTENT:'' in the subject heading of the email 
message.\41\ Commenters noted that no technical limitations on the 
length of an email's subject line constrain the extent of the 
prescribed mark.\42\ Yet, several commenters noted that when placed in 
the subject line of an email message, a mark may push some or all of 
the sender's subject line message beyond the area that is readable by 
an email recipient.\43\
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    \41\ The original mark proposed by the Commission comprises 
twenty-seven (27) characters, including the dashes between the three 
words and the colon (:) and the space following the phrase.
    \42\ See, e.g., ICC at 2 (stating ``[t]here is no technical 
reason that [they] can identify why the Proposed Mark cannot be 
included in the subject line of emails that contain sexually 
explicit material.''). See also Moore at 6.
    \43\ See, e.g., Moore at 1-3, 6 (Although ``there are no 
technical reasons why the Proposed Mark cannot be transmitted in the 
Subject line of email messages,'' the length of the proposed mark 
may be ``undesirable'' because computer programs and devices which 
display email messages impose practical limits on the portion of the 
subject line that is displayed to an email recipient.) See also 
Hinckley (``[W]ith a prefix that long, having anything readable in 
the subject line of a list of emails is going to be difficult.'').
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    The Commission is concerned that the prescribed mark be narrowly 
tailored so that no more speech is affected than is necessary to 
advance the privacy and parental supervision interests that prompted 
Congress to pass Section 5(d) and, accordingly, the Commission to adopt 
this Rule. The Commission has determined that a shorter mark likely can 
achieve the desired purpose as well, or nearly as well, as the longer 
mark proposed initially. Thus, the Commission has shortened the mark in 
the Final Rule to the phrase ``SEXUALLY-EXPLICIT:''.\44\ This shorter 
phrase will provide senders with more room for their own messages while 
still effectively advancing the government's interests and accurately 
describing the materials in question.\45\
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    \44\ The phrase ``SEXUALLY-EXPLICIT'' comprises seventeen (17) 
characters, including the dash between the two words. The colon (:) 
and the space following the phrase are the 18th and 19th characters.
    \45\ By dropping the word ``content'' from the proposed mark, 
and reducing the size of the mark from twenty-seven to nineteen 
characters, the Commission has more narrowly tailored the mark, 
providing a sender with an additional eight characters in which to 
include his or her message.
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    Similarly, the prohibition on sexually oriented materials in the 
subject heading and in the ``initially viewable'' area, the 
``electronic brown paper wrapper,'' \46\ is narrowly tailored to 
directly advance the government's interests without completely banning 
the inclusion of such materials. The Rule does not prohibit the 
inclusion of sexually explicit materials in an email message, it merely 
restricts the manner in which they can be displayed. Placement of the 
prescribed mark in the subject line of a sexually oriented email should 
aid recipients in the filtering of unwanted sexually oriented emails. 
Nevertheless, not all email recipients have equal access to filtering 
programs. Moreover, filtering programs are not foolproof. The record 
confirms that, despite efforts to filter, sexually oriented emails 
often find their way into an email recipient's inbox.\47\ Thus, without 
a prohibition against sexually oriented materials in the subject 
heading of an email message, the Rule would be much less effective in 
that email recipients could be routinely confronted with materials that 
are not filtered out and that they find offensive or objectionable. 
Similarly, without a prohibition against sexually oriented materials in 
the ``initially viewable'' area of an email message, the Rule would be 
much less effective at insuring that email recipients are not 
unwittingly and unwillingly subjected to offensive or objectionable 
materials in email messages that appear in the preview pane of their 
email program or are mistakenly opened, notwithstanding inclusion of 
the mark in the subject line.
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    \46\ The phrase is a reference to the wrapper placed over the 
cover of sexually explicit magazines sent through the U.S. Postal 
system. For purposes of the Rule, the phrase electronic ``brown 
paper wrapper'' refers to the initially viewable area of an email 
message that is free of sexually oriented materials.
    \47\ See, e.g., Kautz; Potts.
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    In addition, prohibiting sexually oriented materials from the 
subject line promotes a range of consumer choice, rather than forcing 
consumers into a rigid ``all or none'' regime. As one commenter noted 
``[i]t may not be appropriate to assume that a recipient's willingness 
to view one sexually oriented message is tantamount to a willingness to 
view all sexually oriented messages--even within sexually oriented 
material there are degrees and differences in taste.'' \48\ By the same 
token, a consumer may not wish, through filtering or the use of an ISP 
that offers filtering, to forego receipt of all email messages with 
sexually explicit content as the price he or she must pay to avoid a 
smaller subcategory of such messages that he or she finds 
objectionable. Prohibiting sexually oriented materials from the subject 
heading of an email message preserves the recipient's ability to make 
his or her viewing choice, on a message-by-message basis, based on the 
content of the subject line, without exposing that person to sexually 
explicit content that he or she may find offensive. The email

[[Page 21028]]

recipient who wishes to view only certain types of sexually explicit 
email messages could modify his or her filtering programs to allow the 
delivery of sexually explicit messages and then choose among these 
messages without being subjected to potentially offensive materials.
---------------------------------------------------------------------------

    \48\ Moore at 7.
---------------------------------------------------------------------------

    In addition to requiring the prescribed mark in the subject heading 
and the ``initially viewable'' portion of an email message that 
contains sexually oriented materials, the Final Rule also requires the 
``initially viewable'' area of the message to include certain specified 
information. In requiring the disclosures in the ``initially viewable'' 
area, the Rule directly advances the government's previously identified 
interests and provides email recipients with important factual 
information about the email message. In Zauderer v. Office of 
Disciplinary Counsel, the Supreme Court considered a challenge to 
compelled commercial speech in an advertisement by an attorney and 
found that an advertiser's ``constitutionally protected interest in not 
providing any particular factual information in his advertising is 
minimal.'' \49\ In upholding a disclosure requirement in 
advertisements, the Court noted that the statute at issue did not 
prevent attorneys from conveying information to the public, it merely 
required them ``to provide somewhat more information than they might 
otherwise be inclined to present.'' \50\
---------------------------------------------------------------------------

    \49\ 471 U.S. 626, 651 (1985).
    \50\ Id. at 650.
---------------------------------------------------------------------------

    Similarly, the Final Rule does not prevent sending sexually 
oriented materials to the public; rather, the Rule merely requires the 
inclusion of important factual information that sexually explicit email 
messages generally do not provide.\51\ The prescribed mark in the 
subject heading of the email message alerts a recipient to the fact 
that an email contains materials that a recipient may find 
objectionable. Considering that sexually explicit email messages are 
often mislabeled in an apparent attempt to confuse and deceive 
recipients,\52\ the Commission believes it is appropriate to require 
the mark in the subject heading of a sexually explicit email 
message.\53\ In addition, placement of the prescribed mark, identifier, 
opt-out and physical address information in the ``initially viewable'' 
area provides a recipient with important factual information about the 
content of the message and the sender of the message, without forcing 
the recipient to view materials that he or she may find objectionable.
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    \51\ See, e.g., Libera; Perry; Andre; Gregg.
    \52\ See, e.g., Haliwell; Gregg; Lieber.
    \53\ See Zauderer at 651 (``[D]isclosure requirements trench 
[sic] much more narrowly on an advertiser's interests than do flat 
prohibitions on speech.'').
---------------------------------------------------------------------------

    In conclusion, the Commission believes that the Final Rule, as 
mandated by Section 7704(d) of the Act, is analogous to the statute 
upheld in Rowan and focuses on unwanted advertisements of a sexual 
nature sent to individuals' homes. The First Amendment raises no 
impediment to Rule provisions that will enable a person to filter out a 
class of objectionable commercial communications, or in the 
alternative, to receive accurate labeling information about the content 
of the email message before being confronted with such content.

III. The Rule

A. Section 316.1(a)(1)--The Prescribed Mark

    Section 316.1(a)(1) of the Proposed Rule would have required that 
``[a]ny person who initiates * * * the transmission of a commercial 
electronic mail message that includes sexually oriented material must: 
(1) Include in the subject heading for the electronic mail message the 
phrase ``SEXUALLY-EXPLICIT-CONTENT:'' in capital letters as the first 
twenty seven (27) characters at the beginning of the subject line.'' 
\54\
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    \54\ 69 FR at 4266.
---------------------------------------------------------------------------

    Commenters agreed that the Commission's proposed mark would 
effectively alert recipients that an email message contains sexually 
oriented materials.\55\ Although the mark is not constrained by any 
technical limitations in the length of an email's subject line,\56\ 
several commenters noted that when placed in the subject line of an 
email message, a mark may push some or all of the sender's subject line 
message beyond the readable area of the subject line.\57\ As noted 
above, to address these concerns, the Commission has shortened the 
prescribed mark to the phrase ``SEXUALLY-EXPLICIT: '' The Commission 
believes that this shortened mark leaves as much space in the subject 
line as possible, consistent with effectively aiding recipients to 
recognize and filter emails that contain sexually oriented materials.
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    \55\ See, e.g., ICC at 3 (``[t]he proposed rule does satisfy the 
statutory requirement to inform recipients that an email may contain 
objectionable sexually explicit content.''). See also VanMeter at 1; 
Chapman; USDOJ; Orlando at 1. Compare Attorney General of New Mexico 
(the mark ``is not clear enough and needs to go further to 
adequately warn recipients of the disturbing and objectionable 
material that may be included with the email.'').
    \56\ See, e.g., ICC at 2; Moore at 6.
    \57\ See, e.g., Moore at 1-3; Hinckley.
---------------------------------------------------------------------------

    The Final Rule also specifies in Section 316.1(a)(1) that the 
initiator of an email message containing sexually oriented material 
must ``exclude sexually oriented materials from the subject heading * * 
*'' This provision complements the requirement in Section 316.1(a)(2) 
that the initially viewable area, or ``brown paper wrapper,''of an 
email message, may contain only certain specified information--not 
sexually oriented material.
    This modification of the Rule ensures that neither the subject line 
nor the initially viewable portion of the message body--that portion of 
an email that a recipient may be able to see without taking any 
affirmative action other than opening his or her email program--will 
confront recipients with unwelcome verbal or visual depictions of 
sexually explicit conduct.\58\ Without this modification, the 
Commission believes that the Rule would not adequately advance the 
legitimate privacy interest of email message recipients in not being 
unwittingly subject to materials depicting such conduct--and not 
allowing their children to be subjected to them. Absent this 
modification, the Rule provisions designed to eliminate such materials 
from the ``initially viewable'' portion of the email could easily be 
defeated by inclusion of such material in the subject line (albeit, 
preceded by the prescribed mark). The Commission, therefore, adjusted 
the Rule to prevent this counterproductive outcome.
---------------------------------------------------------------------------

    \58\ See USDOJ (opining that ``the CAN-SPAM Acts provision 
[Sec.  7704(d)] applies to email containing textual descriptions of 
sexually explicit conduct without images.'').
---------------------------------------------------------------------------

    In formulating the shorter mark or notice, the Commission once 
again considered using variations of the word ``adult'' in the 
mark.\59\ The Commission concludes that use of the word ``adult'' in 
the mark does not provide a recipient with the most effective notice of 
the materials contained in a sexually explicit email. There are many 
products or services that could be considered ``adult'' in nature, 
making the phrase inappropriate and inaccurate in this context.\60\
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    \59\ See, e.g., 69 FR at 4264.
    \60\ For example, one of the first states to implement an 
``adult'' labeling requirement was California in 1998. California's 
``ADV:ADLT'' label applied to email messages containing a range of 
``adult'' materials, including any ``unsolicited advertising 
material for the lease, sale, rental, gift offer, or other 
disposition of any realty, goods, services, or extension of credit, 
that may only be viewed, purchased, rented, leased, or held in 
possession by an individual 18 years of age and older.'' See Ca. 
Bus. & Prof. Code Sec.  17538.4 (repealed 2003). See also New 
Mexico's Unsolicited Facsimiles or E-mail Prohibition, which 
requires the subject line of an email to include the phrase 
``ADV:ADLT'' if ``the unsolicited advertisement advertises realty, 
goods, services, intangibles or the extension of credit that may 
only be viewed, purchased, licensed, rented, leased or held in the 
possession by an individual eighteen years of age or older.'' N.M. 
Stat. Ann. section 57-12-23(B)(4).

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[[Page 21029]]

    In addition, one commenter suggested that ``a mark such as 
`ADLT:SEX' would be sufficient to convey * * * that the message was 
intended for adults and that it was sexually oriented, without 
occupying as much display space.'' \61\ This phrase may alleviate some 
concerns about using the word ``adult'' in the mark, but the materials 
covered by the Final Rule are not simply sexual or adult materials, but 
rather explicit images or explicit descriptions of sexual conduct, 
including graphic depictions of various sex acts. While maximizing 
brevity, the label should be as precise as possible, and should 
accurately reflect the nature of the material whose presence it 
signals. Since an email recipient decides on whether to view an email 
message based on information contained in the email's subject line, for 
the mark to be effective it must accurately signal the sexually 
explicit materials contained in that email.\62\ For these reasons, the 
Commission does not believe that the phrase ``ADLT:SEX'' provides an 
email recipient with the most effective notice that an email contains 
sexually oriented materials.
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    \61\ See Moore at 6.
    \62\ The American Heritage Dictionary defines the word 
``explicit'' as: ``describing or portraying nudity or sexual 
activity in graphic detail.'' American Heritage Dictionary of the 
English Language (4th ed. 2000).
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    Several commenters also addressed whether the inclusion of a mark 
in the subject line of an email message would aid in blocking or 
filtering sexually oriented messages. One commenter stated that the 
mark would ``admirably serve this purpose,'' \63\ noting that the mark 
would work because ``[p]opular email programs, including NetScape 
Communicator and Microsoft Outlook and Outlook Express have filtering 
capabilities that likewise perform text matches within headers,'' and 
that he himself had ``created a spam-filtering software program that 
operates by doing text matches within the headers of incoming email 
messages.'' \64\
---------------------------------------------------------------------------

    \63\ Oney at 1.
    \64\ Id.
---------------------------------------------------------------------------

    Other commenters agreed that the inclusion of the mark in the 
subject heading of an email would assist a computer filtering program, 
but noted that several technical issues, including the character set 
used for the mark, the placement of the mark in the subject heading of 
an email message, the use of punctuation in the mark, and the use of 
non-English words in the mark should be considered to maximize the 
effectiveness of any subject heading label.\65\ These technical 
considerations are discussed below.
---------------------------------------------------------------------------

    \65\ See, e.g., Moore at 7 (agreeing that the inclusion of the 
Proposed Mark would aid a filtering program in blocking unwanted 
sexual emails, but noting that technical considerations may 
ultimately limit the effectiveness of the mark). See also Oney at 1; 
Hinckley.
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(i) The Use of a Single Character Set
    As noted above, the Proposed Rule specified that the mark must be 
displayed ``as the first * * * characters at the beginning of the 
subject line.'' \66\ Numerous commenters suggested that the Final Rule 
go further, to specify that a single character set is required for the 
mark.\67\ One commenter specifically mentioned problems that other 
countries have encountered when spammers used different character sets 
to avoid filters, while still complying with the letter of the law.\68\
---------------------------------------------------------------------------

    \66\ 69 FR at 4266.
    \67\ See, e.g., Mason (The Commission should ``be very clear 
that those exact characters, in a given, named character set, must 
appear in the subject line.''); Koehn.
    \68\ Mason.
---------------------------------------------------------------------------

    The Commission is persuaded that to discourage evasion of the 
labeling requirements, the Final Rule should specify the character set 
in which the prescribed mark must appear. Therefore, the Final Rule 
requires that the prescribed mark be in the ASCII character set.\69\ 
This requirement will maintain a single standard for the mark and 
therefore should promote the effectiveness of filtering systems. The 
Commission has added a definition to Section 316.1(c) of the Final Rule 
to clarify that the word ``character'' means ``an element of the 
American Standard Code for Information Interchange (``ASCII'') 
character set.''
---------------------------------------------------------------------------

    \69\ `ASCII' stands for American Standard Code for Information 
Interchange. ASCII is the basic coding system which computers use to 
communicate with one another. Computers can only understand numbers, 
so an ASCII code is the numerical representation of a character such 
as `a' or `@' or an action of some sort. The standard ASCII 
character set consists of 128 decimal numbers ranging from zero 
through 127 that are assigned to letters, numbers, punctuation 
marks, and the most common special characters.
---------------------------------------------------------------------------

(ii) Placement of the Mark in the Subject Line
    In the NPR, the Commission proposed requiring that the mark be 
displayed ``as the first twenty seven (27) characters at the beginning 
of the subject line'' of any commercial email message that includes 
sexually oriented materials.\70\ Several commenters questioned the 
interaction between the mark and other tags that often occur in the 
subject line of email messages, such as the abbreviations ``re:'' and 
``fw:,'' which are automatically added to an email message that an 
individual has respectively, sent in response, or forwarded.\71\ One 
commenter noted that these tags could place the mark several characters 
off of the beginning of the subject line of an email message, possibly 
causing messages to slip by filters that were set up to recognize the 
mark as the first characters of the subject line.\72\
---------------------------------------------------------------------------

    \70\ 69 FR at 4266.
    \71\ See, e.g., Hinckley (the Commission ``may want to clarify 
that it's the first non-meta information in the subject, or give 
more leeway for initial text (not to mention Fwd: or Re: type 
items).''). See also Moore at 3-4, Oney at 1.
    \72\ Moore at 3-4.
---------------------------------------------------------------------------

    After reviewing the comments, the Commission has determined that no 
change in the Rule is necessary to address the situation when these 
tags are placed in the subject heading of an email message. A tag is 
automatically placed in the subject heading of an email message only 
after the original email recipient has taken some affirmative step 
either to respond to or forward that email.\73\ Because these tags 
result from a recipient's affirmative step, the recipient who forwards 
or responds to such sexually oriented messages should delete any such 
tags added on to the message.\74\
---------------------------------------------------------------------------

    \73\ A recipient who forwards an email message that contains 
sexually oriented material may be an initiating or transmitting 
person within the meaning of Section 5(d) of the Act, and is 
therefore responsible for complying with the Rule and the Act. In a 
separate Federal Register notice, the Commission requested comment 
on who should be considered a person who ``initiates'' an email 
message when one recipient forwards the message to another. 69 FR 
11776 (Mar. 11, 2004).
    \74\ One commenter also noted that email discussion lists often 
attach a prefix of the mailing list's ``listname'' to inform 
recipients that the message was sent through a particular discussion 
list. See Moore at 3. The Commission believes that the voluntary 
nature of a discussion list provides a sender with the opportunity 
to obtain prior affirmative consent from the list's recipients 
before sending out any commercial email messages that contain 
sexually oriented materials, thereby placing these messages outside 
the Rule's scope of coverage.
---------------------------------------------------------------------------

(iii) The Effect of Punctuation on the Mark
    The NPR also elicited comment on whether the inclusion of 
punctuation in the mark would affect the ability of computer programs 
to filter email containing the mark.\75\ The Commission included 
punctuation in the mark (a dash between the two words and a colon and 
space after the phrase) to make the phrase more recognizable, unique, 
and prominent.
---------------------------------------------------------------------------

    \75\ 69 FR at 4266.

---------------------------------------------------------------------------

[[Page 21030]]

    Several commenters addressed this issue and confirmed that the 
inclusion of punctuation characters diminishes the likelihood of a 
filtering program inappropriately or incorrectly filtering or blocking 
an email message.\76\ Because the Commission did not receive any 
comments that suggested that the punctuation in the mark would 
frustrate or negatively effect a filtering program, or any that 
suggested that other punctuation would be superior, the Final Rule 
retains the proposed punctuation in the prescribed mark.
---------------------------------------------------------------------------

    \76\ See, e.g., VanMeter at 1 (``The Proposed Mark's inclusion 
of hyphens between the words will address any concerns that a filter 
set to block a simple English phrase like `sexually explicit 
content' would prevent delivery of an email from an anti-pornography 
group utilizing such a phrase in the content of their email. 
Further, the use of the hyphens creates a unique mark that will 
serve to make emails containing such information to be more 
effectively and easily detected by recipients who do not wish to 
receive such material.''). See also Moore at 8 (noting that the use 
of odd spellings (such as ``ADLT'') would also have a similar 
effect).
---------------------------------------------------------------------------

    In addition, the Final Rule retains the requirement that the mark 
be displayed in capital letters. The Commission believes that this 
requirement makes the mark more prominent and noticeable, thereby 
presenting recipients with an eye-catching phrase that should 
immediately alert them to the sexual content of an email message. The 
Commission received no negative comments regarding the requirement that 
the mark be displayed in capital letters.
(iv) Non-English Alternatives
    In the NPR the Commission chose to prescribe a mark that consisted 
of words rather than images or icons.\77\ The Commission received no 
comments that suggested that the prescribed mark should be anything 
other than words. However, one commenter noted that since the mark 
contains only English words, it may not provide effective notice to 
people who do not speak English.\78\ The Commission is aware of the 
limitations inherent in using English words in the mark, yet practical 
considerations dictate such a choice.
---------------------------------------------------------------------------

    \77\ The Commission selected words over images or icons for the 
mark because of concerns about the efficacy of an image or icon in 
alerting email recipients about the sexual nature of an email 
message. Moreover, an icon or image that accurately depicted the 
sexual materials in question may run afoul of the requirements of 
the Final Rule, thereby frustrating the purpose of the statute.
    \78\ Moore at 4.
---------------------------------------------------------------------------

    As mentioned above, the viewable portion of the subject line of an 
email message depends on the email program that a recipient is using 
and the hardware configurations of the email recipient's computer. The 
limited viewable area of a subject line dictates that the mark be short 
in length while still providing an accurate description of the sexual 
content of an email message. Because of these length limitations, it is 
not feasible to include in the mark additional words or phrases 
translating the mark into the wide range of languages that may be 
spoken by various persons living in this country. In addition, nothing 
in a recipient's email address identifies the language that he or she 
may speak. The impossibility of determining the language that a 
recipient speaks further diminishes the utility of incorporating 
different languages into the Commission's prescribed mark. Furthermore, 
the Commission believes that email recipients, regardless of their 
native language, will quickly learn to identify the prescribed mark and 
understand the relationship between the mark and sexually explicit 
email messages. After reviewing the comments and considering the 
practical limitations in placing a label in the subject heading of an 
email, the Commission has decided to require that the mark be displayed 
only in English.

B. Section 316.1(a)(2)--The Electronic ``Brown Paper Wrapper''

    Section 316.1(a)(2) of the Rule tracks the elements of Section 
7704(d)(1)(B) of the CAN-SPAM Act, and requires that an email message 
that includes sexually oriented material include only certain 
information in the body of the email that is initially viewable by the 
recipient. Commenters focused on several aspects of this section of the 
Rule, including: (1) Clarification of the requirements of the 
electronic ``brown paper wrapper''; (2) the meaning of the phrase 
``initially viewable area''; and (3) what information is allowed in the 
initially viewable area.
(i) Clarification of the Requirements of the Electronic ``Brown Paper 
Wrapper''
    Several commenters sought clarification as to how the electronic 
``brown paper wrapper'' applies to initiators of sexually oriented 
emails.\79\ To address these commenters' concerns, the Commission 
intends to make it clear that the Rule requires that initiators of 
commercial emails that contain sexually oriented materials include the 
prescribed mark in the subject heading of the email AND provide that 
the initially viewable area of the body of the email contain only 
certain specified information. The mark in the subject heading informs 
a recipient that an email contains sexually oriented materials, while 
the electronic ``brown paper wrapper'' ensures that should a recipient 
open a sexually explicit email message, the recipient is not bombarded 
with graphic sexual materials.\80\
---------------------------------------------------------------------------

    \79\ See, e.g., Hinckley (``I can't find any description of how 
the 'brown wrapper' is going to work.''); Koehn (``Is there any 
technical definition of the 'brown paper wrapper.'''); Moore at 4.
    \80\ Commercial emails that contain sexually oriented materials 
sometimes appear automatically in a recipient's preview pane. These 
situations make it more likely that the prescribed mark in the 
subject line of an email message, in and of itself, would not fully 
protect recipients from exposure to materials that they may find 
objectionable or offensive.
---------------------------------------------------------------------------

    With respect to the ``brown paper wrapper,'' the CDT characterized 
the Rule as a ``damned if you do, damned if you don't'' labeling 
requirement which is ``internally conflicting'' and that ``fails the 
constitutional requirement of clarity in speech.'' \81\ The Commission 
sees no such conflict or lack of clarity. The CDT's interpretation of 
the Rule is based on a reading of Section 7704(d)(1)(B) of the CAN-SPAM 
Act that would prohibit ``sending commercial email that includes 
anything more than instructions on how to access sexually oriented 
material, even if the material is lawful.'' \82\ This reading of the 
Act is incorrect. Neither the Act, nor the Rule, excludes sexually 
oriented materials from the body of an email message. The Rule merely 
provides that these materials cannot be located in the subject line or 
the area of the email that is initially viewable to an email recipient.
---------------------------------------------------------------------------

    \81\ CDT at 3.
    \82\ Id.
---------------------------------------------------------------------------

(ii) The ``Initially Viewable'' Area
    Section 316.1(a)(2) of the Proposed Rule required any person who 
initiates an email message that includes sexually oriented material to 
provide that ``the matter in the message that is initially viewable by 
the recipient, when the message is opened by any recipient and absent 
any further actions by the recipient,'' only include certain 
information. The Final Rule retains this requirement with only one 
minor wording change. To make the provision more precise, the phrase 
``the content of'' has been substituted for ``the matter in.'' \83\
---------------------------------------------------------------------------

    \83\ See, e.g., USDOJ.
---------------------------------------------------------------------------

    A number of commenters questioned how initiators of sexually 
explicit materials should go about complying with the ``initially 
viewable'' requirements. One commenter noted that the different email 
protocol standards deal primarily with the manner in which information 
is conveyed between computers and not with how that information is 
ultimately

[[Page 21031]]

presented to the email recipient.\84\ This in turn creates problems 
because the ``initially viewable'' area of an email may differ among 
different recipients of that email, depending on a number of factors, 
including the email program that a recipient is using and the hardware 
configurations of the email recipient's computer.
---------------------------------------------------------------------------

    \84\ Moore at 5 (noting that the Internet is composed of a wide 
range of computing systems and devices, each with varying display 
and input capabilities).
---------------------------------------------------------------------------

    Nevertheless, an initiator of sexually oriented emails is not 
without tools to ensure that the ``initially viewable'' portion of an 
email message does not force the recipient to be confronted with 
offensive and objectionable materials. Given the variables that 
determine how an email message confronts a recipient, the Commission 
believes that the most appropriate way to achieve the Act's goals is to 
cast the Rule provisions in terms of a performance standard patterned 
after the language in the Act.
    The Commission will consider sexually oriented materials to be in 
the ``initially viewable'' area of an email message if, upon opening 
the message, the recipient can see the materials without the recipient 
taking any further deliberate actions. The ``initially viewable'' area 
of an email message will be deemed to be free of sexually oriented 
materials if a recipient who wishes to view these materials must go 
looking for them. An initiator of sexually explicit emails must 
therefore structure the message to ensure that sexually explicit emails 
require an affirmative step by the email recipient to view the 
materials--for example, by scrolling down in order to view the sexually 
explicit content,\85\ or clicking on a link to another section of an 
email message structured with multiple parts or to an external location 
such as a web server.
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    \85\ The Commission recognizes that situations in which a 
recipient merely must scroll down through the initially viewable 
area to see sexually explicit content present challenges. The size 
of the area that must be above sexually oriented material in order 
for the content to be outside the initial viewable area will vary 
with the recipient's software and hardware at any given time, and 
evolve with changes in technology and the price of technology.
---------------------------------------------------------------------------

(iii) Disclosures To Be Included in the Electronic ``Brown Paper 
Wrapper''
    The Final Rule provides that the portion of an email message that 
is initially viewable, absent any actions by the recipient other than 
opening the message, may include only certain specified information. 
Like the Proposed Rule, the Final Rule closely tracks the requirements 
of Section 7704(d)(1)(B) of the Act with only slight modifications to 
improve the Rule's clarity and consistency.
    (a) Section 316.1(a)(2)(i): The prescribed mark in the body of the 
email message. Section 316.1(a)(2)(i) of the Proposed Rule would have 
required that the initially viewable area of the email message include 
the phrase ``SEXUALLY-EXPLICIT-CONTENT:'' in a ``clear and conspicuous 
manner.'' \86\ The Commission received no comments on this requirement. 
Therefore, the Final Rule requires the same mark, ``SEXUALLY-
EXPLICIT:'', be displayed in the initially viewable area, as in the 
subject line of the email message.
---------------------------------------------------------------------------

    \86\ This requirement stems from Section 5(d)(1)(B)(i) of the 
CAN-SPAM Act, which states that the initially viewable area of an 
email message should include ``to the extent required or authorized 
pursuant to paragraph (2), any such marks or notices.'' The 
Commission believes that this internal reference to another section 
of the Act (paragraph (2)) is a typographical error because Section 
7704(d)(3), not Section 7704(d)(2), directs the Commission to 
prescribe a mark or notice that will be included in commercial email 
that contains sexually oriented material. In addition, a review of 
the history of the Act revealed that, before its final passage, in 
prior versions of the Act, Section 7704(d)(2) directed the 
Commission to prescribe the mark or notice. Thus, the confusing 
reference to ``paragraph (2)'' is clearly the result of a reference 
that was mistakenly left over from an earlier version of the Act.
---------------------------------------------------------------------------

    (b) Section 316.1(a)(2)(ii-vi): Inclusion of identifier, opt-out, 
and physical address in commercial email, and instructions on how to 
access the sexually oriented materials. The Proposed Rule would have 
required that the initially viewable area of a sexually oriented 
commercial email message include only the following information: clear 
and conspicuous notice that the message is an advertisement or 
solicitation; a clear and conspicuous opt-out notice; a functioning 
return email address or other Internet-based mechanism for opt-outs; a 
valid physical postal address of the sender; and instructions on how to 
access the sexually oriented material. This required information tracks 
the language found in Section 7704(d)(1)(B)(ii) of the CAN-SPAM 
Act.\87\ The Commission received no comments that directly pertain to 
Sections 316.1(a)(2)(ii-vi) of the Proposed Rule, and therefore retains 
these sections in the Final Rule with only one minor ``house-keeping'' 
change.
---------------------------------------------------------------------------

    \87\ Section 7704(d)(1)(B)(ii) of the Act references 
``information required to be included in the message pursuant to 
subsection (a)(5).'' This subsection of the Act requires the 
``Inclusion of identifier, opt-out, and physical address in 
commercial electronic mail.'' 15 U.S.C. 7704(a)(5).
---------------------------------------------------------------------------

    Except for the ``instructions on how to access the sexually 
oriented material'' in Section 316.1(a)(2)(vi),\88\ all of the required 
disclosures in Sections 316.1(a)(2) of the Final Rule are required to 
be ``clearly and conspicuously'' displayed. As originally proposed, 
316.1(a)(2)(v) did not require that the ``valid physical postal address 
of the sender'' be clearly and conspicuously disclosed. The Commission 
intends to dispel any notion that the valid physical postal address 
could be lawfully displayed in micro print, in a color of type that 
does not contrast with the background, or otherwise made hard to read 
and understand. Therefore, to ensure that this information is presented 
in a manner likely to be noticed by recipients, the Commission has 
added the phrase ``clearly and conspicuously displayed'' to Section 
316.1(a)(2)(v) of the Final Rule.
---------------------------------------------------------------------------

    \88\ Because of the economic nature of the email message, the 
Commission is not concerned that a sender of a commercial email 
message that contained sexually oriented materials would fail to 
clearly and conspicuously display his or her instructions on how a 
potential buyer could access the materials.
---------------------------------------------------------------------------

    (c) Section 316.1(b): Prior Affirmative Consent. Section 316.1(b) 
of the Proposed Rule provided that the requirements of the Rule do not 
apply ``to the transmission of an electronic mail message if the 
recipient has given prior affirmative consent to receipt of the 
message.'' This exception tracks the language found in Section 
7704(d)(2) of the CAN-SPAM Act.\89\ The Commission received no comments 
on Section 316.1(b), and, therefore, retains this section in the Final 
Rule without changes.
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    \89\ 15 U.S.C. 7704(d)(2).
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    (d) Section 316.1(c): Definitions. Section 316.1(c) of the Final 
Rule includes the definitions of a number of key terms of the Rule.\90\ 
Most of these terms are defined by references to the corresponding 
sections of the Act. The Commission sought comment in the NPR as to 
whether the definitions as set forth in the Proposed Rule were 
acceptable and whether it would be preferable to include the legal 
definitions themselves in the Final Rule.
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    \90\ Most of the terms listed in Sec.  316.1(c) occur in the 
text of the Final Rule; several of them are not in the Rule text, 
but are defined in the Rule because CAN-SPAM incorporates and 
defines them within the definition of another term. For example, the 
term ``procure'' is listed in the Rule's definitions [at Sec.  
316.1(c)(7)] because the Act defines and includes it in the term 
``initiate.''
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    Only one commenter suggested that the Rule should go beyond merely 
referencing the Act's definitions and, for clarity's sake, should also 
include the legal definitions in the Final Rule.\91\ At the other end 
of the spectrum, another commenter worried that importing the full 
statutory definitions into the Final Rule creates a risk that the Rule 
may

[[Page 21032]]

become stale if Congress amends the Act, or sections of the Act to 
which the Rule refers.\92\
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    \91\ Orlando at 3.
    \92\ Oney at 2.
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    The Commission believes that by referencing the definitions found 
in the Act, and any future modifications to those definitions, the 
Final Rule will accurately and effectively track any future changes 
made to the definitions in the Act.\93\ Except as discussed below, the 
Commission has decided to maintain the method of defining key terms of 
the Final Rule by reference to the Act.
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    \93\ For example, the Act requires that the Commission go 
through the rulemaking process to define the meaning of ``the 
primary purpose of an electronic mail message.'' See 15 U.S.C. 
7702(2)(c). It is possible that this rulemaking will alter the 
underlying definition of ``commercial electronic mail message'' as 
well as the definition of ``transactional or relationship 
messages.''
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    (i) The definition of ``sexually oriented materials''. The term 
``sexually oriented material'' is defined in Section 7704(d)(4) of the 
CAN-SPAM Act as ``any material that depicts sexually explicit conduct 
(as that term is defined in Section 2256 of title 18, United States 
Code), unless the depiction constitutes a small and insignificant part 
of the whole, the remainder of which is not primarily devoted to sexual 
matters.'' \94\ (Emphasis supplied). Several commenters expressed 
confusion regarding what materials would be considered ``sexually 
oriented'' under the CAN-SPAM definition.\95\ The Department of Justice 
(``DOJ'') opined that the Act applies to email messages that contain 
textual descriptions of sexually explicit conduct without images.\96\ 
The Commission has determined that the phrase ``sexually oriented 
materials,'' as defined in Section 7704(d)(4) of the Act, applies to 
both visual images and written descriptions of sexually explicit 
conduct.
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    \94\ 15 U.S.C. 7704(d)(4).
    \95\ See, e.g., Oney, Koehn, Nunex, Simon-Kissel.
    \96\ USDOJ.
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    Nothing in the text of the CAN-SPAM Act, nor in its legislative 
history, indicates an intent to limit the application of Section 
7704(d) to only visual materials. Referencing the definition of 
``sexually explicit content'' from 18 U.S.C. Section 2256, the Sexual 
Exploitation and Other Abuse of Children Act (``Abuse of Children 
Act''), in CAN-SPAM's definition of ``sexually oriented material'' does 
not necessarily import that Act's limitations in scope into Section 
7704(d).\97\ Moreover, the phrase ``sexually explicit conduct,'' as 
defined in the Abuse of Children Act is not itself limited to only 
visual images.\98\
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    \97\ The Abuse of Children Act, on its face, applies only to 
visual images of child pornography. But referencing that Act does 
not limit Section 7704(d) of CAN-SPAM to only visual images. 
Similarly, CAN-SPAM's reference to the Abuse of Children Act (a 
child pornography statute) does not limit CAN-SPAM's coverage to 
only emails involving children.
    \98\ Section 2256(2)(A) of the Abuse of Children Act, defines 
``sexually explicit conduct'' to mean ``actual or simulated--(i) 
sexual intercourse, including genital-genital, oral-genital, anal-
genital, or oral-anal, whether between persons of the same or 
opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or 
masochistic abuse; or (v) lascivious exhibition of the genitals or 
pubic area of any person.''
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    The Commission's interpretation that the definition of ``sexually 
oriented materials'' covers both visual images and written descriptions 
of sexually explicit conduct also takes into consideration the meaning 
of the word ``depicts,'' as it is used in Section 7704(d)(4) of CAN-
SPAM.\99\ The American Heritage Dictionary of the English Language 
defines the word ``depict'' to mean: ``(1) to represent in a picture or 
sculpture; (2) to represent in words; describe.'' \100\ Thus, while the 
primary meaning pertains to visual images, the secondary meaning 
encompasses descriptions in words. It is clear that an unsolicited 
commercial email could describe sexually explicit conduct in words as 
easily as it could represent such materials in a picture, and both 
types of depictions fall within the coverage of Section 7704(d) of the 
CAN-SPAM Act.\101\
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    \99\ Sexually oriented materials is defined under Section 
7704(d)(4) of the CAN-SPAM Act as ``any material that depicts 
sexually explicit conduct * * *'' (emphasis supplied).
    \100\ American Heritage Dictionary of the English Language (4th 
ed. 2000).
    \101\ Numerous commenters expressed concerns over the large 
number of unsolicited commercial emails they receive that are sexual 
in nature (i.e., advertisements for sexual enhancing drugs.) 
Although the ultimate decision as to whether an email message 
includes a depiction of sexually explicit conduct will be based on a 
review of the content of the individual email message, it is 
important to recognize that the CAN-SPAM Act covers only those 
commercial email messages that depict sexually explicit conduct, as 
defined in the Act, and not all materials of a sexual nature.
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    (ii) The definition of ``character''. As mentioned above, to help 
maintain a single standard for the mark and therefore increase the 
effectiveness of filtering systems, the Final Rule requires that the 
prescribed mark be in the ASCII character set. Section 316.1(c), 
therefore, has been expanded to include a definition of the word 
``character'' to mean ``an element of the American Standard Code for 
Information Interchange (``ASCII'') character set.''

IV. Paperwork Reduction Act

    The Final Rule does not include a collection of information subject 
to the Paperwork Reduction Act (44 U.S.C. 3506; 5 CFR 1320). The mark 
that the Final Rule requires ``is information originally supplied by 
the federal government.''\102\
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    \102\ See 5 CFR 1320.3(c)(2).
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V. Regulatory Flexibility Act

    The NPR included an initial regulatory flexibility analysis 
(``IRFA'') under the Regulatory Flexibility Act (``RFA''),\103\ even 
though the Commission did not expect that the Proposed Rule would have 
a significant economic impact on a substantial number of small 
entities. In addition, the Commission invited public comment on the 
Proposed Rule's effect on small entities to ensure that no significant 
impact would be overlooked.\104\
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    \103\ 5 U.S.C. 601-612.
    \104\ 69 FR at 4265-66.
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    This Final Regulatory Flexibility Analysis (``FRFA'') incorporates 
the Commission's initial findings, as set forth in the NPR; addresses 
the comments submitted in response to the IRFA notice; and describes 
the steps the Commission has taken in the Final Rule to minimize the 
impact on small entities consistent with the objectives of the CAN-SPAM 
Act.

A. Succinct Statement of the Need for, and Objectives of, the Final 
Rule

    The Final Rule was created pursuant to the Commission's mandate 
under Section 7704(d) of the Act and its authority under Section 
7711(a) of the CAN-SPAM Act. In order to inform the recipient that an 
email message contains sexually oriented materials and to facilitate 
filtering of such email messages, the Final Rule requires that any 
person who initiates a commercial email that contains sexually oriented 
material must: (1) Exclude sexually oriented materials from the subject 
heading of the email message and include the phrase ``SEXUALLY-
EXPLICIT:'' in the subject heading; and (2) include only the following 
information in the initially viewable matter of the message: (i) the 
phrase ``SEXUALLY-EXPLICIT:''; (ii) identifier, opt-out, and physical 
address information; and (iii) instructions on how to access the 
sexually oriented material.

B. Summary of Significant Issues Raised by the Public Comments in 
Response to the IRFA

    In the IRFA, the Commission sought comment regarding the impact of 
the Proposed Rule and any alternatives the Commission should consider, 
with a

[[Page 21033]]

specific focus on the effect of the Rule on small entities. The public 
comments on the Proposed Rule are discussed above throughout the 
Statement of Basis and Purpose, as are any changes that have been made 
in the Final Rule. After reviewing the comments, the Commission does 
not believe that the Final Rule will unduly burden the entities who 
sell sexually oriented materials through email messages, or those 
consumers who purchase such materials.\105\
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    \105\ See, e.g., Bordeaux (``I am also an [Information 
Technology] director* * * and I don't see anything in the present 
rule that would cause significant technical issues,''); Potts 
(``This would be a simple change (I work in IT and know what it 
would take) that could be accomplished in less than a day.''); 
Orlando at 2; Van Meter at 1. But see, Moore at 7 (outlining several 
ways in which the Rule may burden sellers and purchasers of sexually 
oriented materials); Oney at 2.
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C. Explanation as to Why No Estimate Is Available as to the Number of 
Small Entities to Which the Final Rule Will Apply

    In general, the Final Rule will apply to any person or entity who 
initiates, originates, or transmits a commercial email message that 
contains sexually oriented material. Determining a precise estimate of 
the number of small entities subject to the Proposed Rule, or 
describing those entities, is not readily feasible because the 
assessment of whether an email message contains sexually oriented 
material turns on a number of factors that will require factual 
analysis on a case-by-case basis. In connection with the NPR and the 
IRFA, the Commission has not received any comments providing an 
estimate of the number of small entities to which the Final Rule will 
apply.

D. Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Final Rule, Including an Estimate of the 
Classes of Small Entities That Will Be Subject to the Requirements of 
the Final Rule and the Type of Professional Skills That Will Be 
Necessary To Implement the Final Rule

    The Final Rule does not impose any reporting or any specific 
record-keeping requirements within the meaning of the Paperwork 
Reduction Act. While one commenter expressed concerns about the 
additional costs that may be associated with implementing the 
requirements of the Rule,\106\ the Commission does not believe that the 
requirements of the Rule will create a significant burden on persons or 
entities who initiate commercial email messages that include sexually 
oriented material. The Commission has not received any comments that 
necessitate modifying its previous description of projected compliance 
requirements.
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    \106\ Moore at 5.
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E. Discussion of Significant Alternatives Considered by the Commission 
That Would Accomplish the Stated Objectives of the CAN-SPAM Act and 
That Would Minimize Any Significant Economic Impact of the Final Rule 
on Small Entities

    Through the NPR, the Commission sought to gather information 
regarding the economic impact of CAN-SPAM's requirements on all 
businesses, including small entities. The Commission requested public 
comment on whether the Proposed Rule would unduly burden either 
entities selling lawful sexually oriented material through email 
messages or those consumers who were interested in purchasing sexually 
oriented material offered to them through email messages; whether this 
burden is justified by offsetting benefits to consumers; what effect 
the Rule will have on small entities that initiate commercial email 
messages that include sexually oriented material; what costs will be 
incurred by small entities to ``implement and comply'' with the Rule; 
and whether there are ways the Rule could be modified to reduce the 
costs or burdens for small entities while still being consistent with 
the requirements of the Act.\107\ This information was requested by the 
Commission in an attempt to minimize the Final Rule's burden on all 
businesses, including small entities.
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    \107\ 69 FR at 4265-66.
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    The Commission does not believe that the Final Rule will create a 
significant economic impact on persons or entities who initiate a 
commercial email message that includes sexually oriented material. The 
Final Rule does not prevent such entities from selling or advertising 
their materials; it merely limits the confrontational manner in which 
they currently advertise them. In doing so, it provides the offsetting 
benefit of allowing email recipients to potentially avoid unwanted 
exposure to materials that they might find offensive. In addition, the 
Final Rule imposes only a minor restriction on those individuals who 
are interested in purchasing sexually oriented materials--their ability 
to view or purchase such materials is only a mouse click away.
    The Commission has not received any comments that lead it to 
believe that the Final Rule will unduly burden either the entities who 
sell, or those consumers who purchase, sexually oriented material 
through email messages. In any event, the Commission believes that the 
minimal burden imposed upon such entities is justified by offsetting 
benefits to consumers, namely, the ability of a consumer to avoid 
viewing materials that they may consider objectionable or offensive.

List of Subjects in 16 CFR Part 316

    Advertising, Business and industry, Computer technology, Consumer 
protection, Labeling.

0
Accordingly, for the reasons set forth in the preamble, the Commission 
adds a new part 316 consisting of Sec.  316.1 to title 16 of the Code 
of Federal Regulations to read as follows:

PART 316--RULES IMPLEMENTING THE CAN-SPAM ACT OF 2003


Sec.  316.1  Requirement to place warning labels on commercial 
electronic mail that contains sexually oriented material.

    (a) Any person who initiates, to a protected computer, the 
transmission of a commercial electronic mail message that includes 
sexually oriented material must:
    (1) Exclude sexually oriented materials from the subject heading 
for the electronic mail message and include in the subject heading the 
phrase ``SEXUALLY-EXPLICIT:'' in capital letters as the first nineteen 
(19) characters at the beginning of the subject line;\1\
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    \1\ The phrase ``SEXUALLY-EXPLICIT'' comprises 17 characters, 
including the dash between the two words. The colon (:) and the 
space following the phrase are the 18th and 19th characters.
---------------------------------------------------------------------------

    (2) Provide that the content of the message that is initially 
viewable by the recipient, when the message is opened by any recipient 
and absent any further actions by the recipient, include only the 
following information:
    (i) The phrase ``SEXUALLY-EXPLICIT:'' in a clear and conspicuous 
manner; \2\
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    \2\ This phrase consists of nineteen (19) characters and is 
identical to the phrase required in Sec.  316.1(a)(1) of this Rule.
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    (ii) Clear and conspicuous identification that the message is an 
advertisement or solicitation;
    (iii) Clear and conspicuous notice of the opportunity of a 
recipient to decline to receive further commercial electronic mail 
messages from the sender;
    (iv) A functioning return electronic mail address or other 
Internet-based mechanism, clearly and conspicuously displayed, that--
    (A) A recipient may use to submit, in a manner specified in the 
message, a reply electronic mail message or other form of Internet-
based communication requesting not to receive future

[[Page 21034]]

commercial electronic mail messages from that sender at the electronic 
mail address where the message was received; and
    (B) Remains capable of receiving such messages or communications 
for no less than 30 days after the transmission of the original 
message;
    (v) Clear and conspicuous display of a valid physical postal 
address of the sender; and
    (vi) Any needed instructions on how to access, or activate a 
mechanism to access, the sexually oriented material, preceded by a 
clear and conspicuous statement that to avoid viewing the sexually 
oriented material, a recipient should delete the email message without 
following such instructions.
    (b) Prior affirmative consent. Paragraph (a) of this section does 
not apply to the transmission of an electronic mail message if the 
recipient has given prior affirmative consent to receipt of the 
message.
    (c) Definitions. (1) The definition of the term ``affirmative 
consent'' is the same as the definition of that term in the CAN-SPAM 
Act, 15 U.S.C. 7702(1).
    (2) ``Character'' means an element of the American Standard Code 
for Information Interchange (``ASCII'') character set.
    (3) The definition of the term ``commercial electronic mail 
message'' is the same as the definition of that term in the CAN-SPAM 
Act, 15 U.S.C. 7702(2).
    (4) The definition of the term ``electronic mail address'' is the 
same as the definition of that term in the CAN-SPAM Act, 15 U.S.C. 
7702(5).
    (5) The definition of the term ``electronic mail message'' is the 
same as the definition of that term in the CAN-SPAM Act, 15 U.S.C. 
7702(6).
    (6) The definition of the term ``initiate'' is the same as the 
definition of that term in the CAN-SPAM Act, 15 U.S.C. 7702(9).
    (7) The definition of the term ``Internet'' is the same as the 
definition of that term in the CAN-SPAM Act, 15 U.S.C. 7702(10).
    (8) The definition of the term ``procure'' is the same as the 
definition of that term in the CAN-SPAM Act, 15 U.S.C. 7702(12).
    (9) The definition of the term ``protected computer'' is the same 
as the definition of that term in the CAN-SPAM Act, 15 U.S.C. 7702(13).
    (10) The definition of the term ``recipient'' is the same as the 
definition of that term in the CAN-SPAM Act, 15 U.S.C. 7702(14).
    (11) The definition of the term ``routine conveyance'' is the same 
as the definition of that term in the CAN-SPAM Act, 15 U.S.C. 7702(15).
    (12) The definition of the term ``sender'' is the same as the 
definition of that term in the CAN-SPAM Act, 15 U.S.C. 7702(16).
    (13) The definition of the term ``transactional or relationship 
messages'' is the same as the definition of that term in the CAN-SPAM 
Act, 15 U.S.C. 7702(17).
    (14) The definition of the term ``sexually oriented material'' is 
the same as the definition of that term in the CAN-SPAM Act, 15 U.S.C. 
7704(d)(4).
    (d) Severability. The provisions of this Rule are separate and 
severable from one another. If any provision is stayed or determined to 
be invalid, it is the Commission's intention that the remaining 
provisions shall continue in effect.

    Authority: Pub. L. 108-187, 117 Stat. 2699, 15 U.S.C. 7701 et 
seq.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 04-8679 Filed 4-16-04; 8:45 am]
BILLING CODE 6750-01-P