[Federal Register Volume 82, Number 123 (Wednesday, June 28, 2017)]
[Proposed Rules]
[Pages 29254-29256]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-13471]



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FEDERAL TRADE COMMISSION

16 CFR Part 316

RIN 3084-AB38


CAN-SPAM Rule

AGENCY: Federal Trade Commission (``Commission'' or ``FTC'').

ACTION: Rule review; request for public comments.

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SUMMARY: The Commission is requesting public comments on its rule 
implementing the Controlling the Assault of Non-Solicited Pornography 
and Marketing Act (the ``CAN-SPAM Rule'' or ``Rule''). The Commission 
is soliciting comments about the efficiency, costs, benefits, and 
regulatory impact of the Rule as part of its systematic review of all 
current Commission regulations and guides. All interested persons are 
hereby given notice of the opportunity to submit written data, reviews, 
and arguments concerning the Rule.

DATES: Written comments concerning the CAN-SPAM Rule must be received 
no later than August 31, 2017.

ADDRESSES: Interested parties may file a comment online or on paper, by 
following the instructions in the Request for Comment part of the 
SUPPLEMENTARY INFORMATION section below. Write: ``CAN-SPAM Rule, 16 CFR 
part 316, Project No. R711010,'' on your comment, and file your comment 
online at https://ftcpublic.commentworks.com/ftc/canspamrulereview by 
following the instructions on the web-based form. If you prefer to file 
your comment on paper, write ``CAN-SPAM Rule, 16 CFR part 316, Project 
No. R711010,'' on your comment and on the envelope, and mail your 
comment to the following address: Federal Trade Commission, Office of 
the Secretary, 600 Pennsylvania Avenue NW., Suite CC-5610 (Annex B), 
Washington, DC 20580, or deliver your comment to the following address: 
Federal Trade Commission, Office of the Secretary, Constitution Center, 
400 7th Street SW., 5th Floor, Suite 5610 (Annex B), Washington, DC 
20024.

FOR FURTHER INFORMATION CONTACT: Christopher E. Brown, Division of 
Marketing Practices, Bureau of Consumer Protection, Federal Trade 
Commission, 600 Pennsylvania Avenue NW., Washington, DC 20580, (202) 
326-2825.

SUPPLEMENTARY INFORMATION:

I. Background

    Enacted in 2003, and effective since January 1, 2004, the 
Controlling the Assault of Non-Solicited Pornography and Marketing Act 
(``CAN-SPAM Act'' or ``Act''),\1\ regulates the transmission of all 
commercial electronic mail (``email'') messages. The Act specifically 
prohibits certain commercial email acts and practices \2\ and 
establishes specific requirements for the content of these messages \3\ 
to ensure that recipients have the right to opt out of receiving 
them.\4\ The Act explicitly directed the Commission to issue 
regulations ``defining the relevant criteria to facilitate the 
determination of the primary purpose of an electronic mail message.'' 
\5\ The Act also mandated that the ``Commission in consultation with 
the Attorney General shall 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.'' \6\ In addition to these mandatory rulemakings, the Act also 
provides discretionary authority for the Commission to issue 
regulations concerning certain of the Act's other definitions and 
provisions.\7\
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    \1\ 15 U.S.C. 7701-7713.
    \2\ Section 7704(a)(1) of the Act prohibits transmission of any 
email that contains false or misleading header or ``from'' line 
information. Section 7704(a)(2) prohibits the transmission of 
commercial email messages with false or misleading subject headings.
    \3\ Section 7704(a)(5) prohibits the initiation of a commercial 
email message unless it contains three disclosures: (1) Clear and 
conspicuous identification that the message is an advertisement or 
solicitation; (2) clear and conspicuous notice of the opportunity to 
decline to receive further commercial email messages from the 
sender; and (3) a valid physical postal address of the sender.
    \4\ Section 7704(a)(3) requires that a commercial email message 
contain a functioning return email address or similar Internet-based 
mechanism for recipients to use to ``opt out'' of receiving future 
commercial email messages. Section 7704(a)(4) prohibits the sender, 
or others acting on the sender's behalf, from initiating a 
commercial email to a recipient more than ten business days after 
the recipient has opted out.
    \5\ 15 U.S.C. 7702(2)(C). The Act authorizes the Commission to 
use notice and comment rulemaking pursuant to the Administrative 
Procedures Act, 5 U.S.C. 553. 15 U.S.C. 7711.
    \6\ 15 U.S.C. 7704(d)(3).
    \7\ 15 U.S.C. 7702(17)(B); 7704(c)(1)(A)-(C); 7704(c)(2); 
7711(a).
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    Pursuant to the Act's directive, the Commission promulgated a rule 
styled the Label for Email Messages Containing Sexually Oriented 
Material (``Adult Labeling Rule'') in 2004.\8\ The Adult Labeling Rule 
provides 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 phrase 
``SEXUALLY-EXPLICIT: ''; and (2) provide that the content of the email 
message that is initially viewable when the message is opened include 
only certain specified information, and not include any sexually 
oriented materials.\9\ The Adult Labeling Rule also exempts situations 
where a recipient has given his or her prior consent to receipt of a 
sexually oriented message.\10\
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    \8\ Federal Trade Commission: Label for Email Messages 
Containing Sexually Oriented Material; Final Rule, 69 FR 21024 (Apr. 
19, 2004).
    \9\ 16 CFR 316.4 (a). The Adult Labeling Rule was originally 
numbered section 316.1 when it was promulgated on April 19, 2004. In 
the August 13, 2004, Notice of Proposed Rulemaking, the only change 
proposed to the Adult Labeling Rule was to renumber it as section 
316.4. The Commission requested comment on this proposed change and 
did not receive any responsive comments.
    \10\ 16 CFR 316.4(b).
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    In 2005, the Commission issued CAN-SPAM Rule provisions that define 
the relevant criteria to determine the ``primary purpose'' of an email 
message.\11\ To facilitate this determination, the Rule describes four 
categories of messages--(1) messages that contain only commercial 
content, (2) messages that contain both commercial content and 
``transactional or relationship content,'' (3) messages that contain 
both commercial content and content that is neither commercial nor 
``transactional or relationship,'' (4) messages that contain only 
``transactional or relationship content''--and provides criteria for 
determining the primary purpose of such email messages.\12\ Under the 
Rule, if an email message contains only commercial content, the 
``primary purpose'' of the message shall be deemed to be 
commercial.\13\ Similarly, if an email message contains only 
transactional or relationship content, the ``primary purpose'' of the 
message shall be deemed to be ``transactional or relationship.'' \14\ 
If an email message contains both commercial content and transactional 
or relationship content, then the primary purpose of the message shall 
be deemed to be commercial if: (1) A recipient reasonably interpreting 
the subject line of the email message would likely conclude that the 
message contains the commercial advertisement or promotion of a 
commercial product or service; or (2) the email message's transactional 
or relationship content does not appear, in whole or in substantial 
part, at the beginning of the

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body of the message.\15\ In addition to the subject line criterion 
applicable to all dual-purpose messages, the Rule also describes 
another criterion to determine the primary purpose of a message that 
contains commercial content and content that is neither commercial nor 
``transactional or relationship'' in nature.\16\ In such a case, the 
primary purpose of the message still would be deemed ``commercial'' if 
a recipient reasonably interpreting the body of the message would 
likely conclude that the primary purpose of the message is to advertise 
or promote a product or service. The Rule lists several factors 
relative to this inquiry, including the placement of content that 
advertises or promotes a product or service at or near the beginning of 
the body of the message; the proportion of the message dedicated to 
such content; and how color, graphics, type size, and style are used to 
highlight commercial content.\17\
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    \11\ Federal Trade Commission: Definitions and Implementation 
Under the CAN-SPAM Act; Final Rule, 70 FR 3110 (Jan. 19, 2005).
    \12\ 16 CFR 316.3.
    \13\ 16 CFR 316.3(a)(1).
    \14\ 16 CFR 316.3(b).
    \15\ 16 CFR 316.3(a)(2).
    \16\ 16 CFR 316.3(a)(3).
    \17\ 16 CFR 316.3(a)(3)(ii).
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    The Rule also clarifies that the definitions of certain terms taken 
from the Act and appearing in the Rule are prescribed by particular 
referenced portions of the Act. These terms include: ``affirmative 
consent,'' ``commercial electronic mail message,'' ``electronic mail 
address,'' ``initiate,'' ``Internet,'' ``procure,'' ``protected 
computer,'' ``recipient,'' ``routine conveyance,'' ``sender,'' 
``sexually oriented material,'' and ``transactional or relationship 
message.'' \18\ The Rule also includes a severability provision that 
provides that if any portion of the Rule is found to be invalid, the 
remaining portions will survive.\19\
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    \18\ 16 CFR 316.2(a), (c)--(n).
    \19\ 16 CFR 316.6. The severability provision was previously 
numbered section 316.5 when it was promulgated in January 19, 2005, 
and applies to the entire Final Rule.
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    Pursuant to its discretionary authority to issue regulations to 
implement the provisions of the Act, the Commission promulgated 
additional CAN-SPAM Rule provisions in 2008. These provisions: (1) Add 
a definition of the term ``person;'' (2) modify the term ``sender'' in 
those instances where a single email message contains advertisements 
for the products, services, or Web sites of multiple entities; (3) 
clarify that a sender may comply with section 7704(a)(5)(A)(iii) of the 
Act by including in a commercial email message a post office box or 
private mailbox established pursuant to United States Postal Service 
regulations; and (4) clarify that to submit a valid opt-out request, a 
recipient cannot be required to pay a fee, provide information other 
than his or her email address and opt-out preferences, or take any 
steps other than sending a reply email message or visiting a single 
page on an Internet Web site.\20\
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    \20\ Federal Trade Commission: Definitions and Implementation 
Under the CAN-SPAM Act; Final Rule, 73 FR 29654 (May 21, 2008).
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II. Regulatory Review of the CAN-SPAM Rule

    The Commission periodically reviews all of its rules and guides. 
These reviews seek information about the costs and benefits of the 
agency's rules and guides, and their regulatory and economic impact. 
The information obtained assists the Commission in identifying those 
rules and guides that warrant modification or rescission. Therefore, 
the Commission solicits comments on, among other things, the economic 
impact and benefits of the Rule; possible conflict between the Rule and 
state, local, or other federal laws or regulations; and the effect on 
the Rule from any technological, economic, or other industry changes 
since promulgation of the Rule.

III. Issues for Comment

    The Commission requests written comment on any or all of the 
following questions. The General Questions reflect those traditionally 
raised at such a review. The Specific Questions are based on the CAN-
SPAM Act's express grant of specific or supplementary rulemaking 
authority.\21\ All questions are designed to assist the public and 
should not be construed as a limitation on the issues on which public 
comment may be submitted. The Commission requests that responses to its 
questions be as specific as possible, including a reference to the 
question being answered, and reference to empirical data or other 
evidence upon which comments are based whenever available and 
appropriate.
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    \21\ See 15 U.S.C. 7702(17)(B) and 7704(c)(1)-(2).
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A. General Issues

    1. Is there a continuing need for the Rule? Why or why not?
    2. What benefits has the Rule provided to consumers? What evidence 
supports the asserted benefits?
    3. What modifications, if any, should be made to the Rule to 
increase its benefits to consumers?
    (a) What evidence supports the proposed modifications?
    (b) How would these modifications affect the costs the Rule imposes 
on businesses, including small businesses?
    (c) How would these modifications affect the benefits to consumers?
    4. What impact has the Rule had on the flow of truthful information 
to consumers and on the flow of deceptive information to consumers?
    5. What significant costs, if any, has the Rule imposed on 
consumers? What evidence supports the asserted costs?
    6. What modifications, if any, should be made to the Rule to reduce 
any costs imposed on consumers?
    (a) What evidence supports the proposed modifications?
    (b) How would these modifications affect the benefits provided by 
the Rule?
    7. What benefits, if any, has the Rule provided to businesses, 
including small businesses? What evidence supports the asserted 
benefits?
    8. What modifications, if any, should be made to the Rule to 
increase its benefits to businesses, including small businesses?
    (a) What evidence supports the proposed modifications?
    (b) How would these modifications affect the costs the Rule imposes 
on businesses, including small businesses?
    (c) How would these modifications affect the benefits to consumers?
    9. What significant costs, if any, including costs of compliance, 
has the Rule imposed on businesses, including small businesses? What 
evidence supports the asserted costs?
    10. What modifications, if any, should be made to the Rule to 
reduce the costs imposed on businesses, including small businesses?
    (a) What evidence supports the proposed modifications?
    (b) How would these modifications affect the benefits provided by 
the Rule?
    11. What evidence is available concerning the degree of industry 
compliance with the Rule?
    12. What modifications, if any, should be made to the Rule to 
account for changes in relevant technology or economic conditions? What 
evidence supports the proposed modifications?
    13. Does the Rule overlap or conflict with other federal, state, or 
local laws or regulations? If so, how?
    (a) What evidence supports the asserted conflicts?
    (b) With reference to the asserted conflicts, should the Rule be 
modified? If so, why, and how? If not, why not?

B. Specific Issues

    1. Should the Commission modify the Rule to expand or contract the 
categories of messages that are treated as transactional or 
relationship messages?
    (a) Why or why not?
    (b) What evidence supports such a modification?
    (c) How would this modification affect the costs the Rule imposes 
on businesses, including small businesses?

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    (d) How would this modification affect the benefits to consumers?
    2. As discussed above, the Rule tracks the CAN-SPAM Act in 
prohibiting the sending of commercial email to a recipient more than 
ten business days after the recipient opts out. Should the Commission 
modify the Rule to reduce the time-period for processing opt-out 
requests to less than ten business days?
    (a) Why or why not?
    (b) What evidence supports such a modification?
    (c) How would this modification affect the costs the Rule imposes 
on businesses, including small businesses?
    (d) How would this modification affect the benefits to consumers?
    3. Should the Commission modify the Rule to specify additional 
activities or practices that constitute aggravated violations?
    (a) Why or why not?
    (b) What evidence supports such a modification?
    (c) How would this modification affect the costs the Rule imposes 
on businesses, including small businesses?
    (d) How would this modification affect the benefits to consumers?

IV. Request for Comment

    You can file a comment online or on paper. For the Commission to 
consider your comment, we must receive it on or before August 31, 2017. 
Write ``CAN-SPAM Rule, 16 CFR part 316, Project No. R711010,'' on your 
comment. Your comment--including your name and your state--will be 
placed on the public record of this proceeding, including, to the 
extent practicable, on the public Commission Web site, at https://www.ftc.gov/policy/public-comments.
    Postal mail addressed to the Commission is subject to delay due to 
heightened security screening. As a result, we encourage you to submit 
your comments online. To make sure that the Commission considers your 
online comment, you must file it at: https://ftcpublic.commentworks.com/ftc/canspamrulereview, by following the 
instructions on the web-based form. If this Notice appears at https://www.regulations.gov/#!home, you also may file a comment through that 
Web site.
    If you prefer to file your comment on paper, write ``CAN-SPAM Rule, 
16 CFR part 316, Project No. R711010'' on your comment and on the 
envelope, and mail your comment to the following address: Federal Trade 
Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite 
CC-5610 (Annex B), Washington, DC 20580, or deliver your comment to the 
following address: Federal Trade Commission, Office of the Secretary, 
Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex 
B), Washington, DC 20024. If possible, submit your paper comment to the 
Commission by courier or overnight service.
    Because your comment will be placed on the publicly accessible FTC 
Web site at https://www.ftc.gov, you are solely responsible for making 
sure that your comment does not include any sensitive personal 
information. In particular, your comment should not include any 
sensitive personal information, such as your or anyone else's Social 
Security number; date of birth; driver's license number or other state 
identification number, or foreign country equivalent; passport number, 
financial account number; or credit or debit card number. You are also 
solely responsible for making sure that your comment does not include 
any sensitive health information, such as medical records or other 
individually identifiable health information. In addition, your comment 
should not include any ``trade secret or any commercial or financial 
information which . . . is privileged or confidential''--as provided in 
section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 
16 CFR 4.10(a)(2)--including in particular competitively sensitive 
information such as costs, sales statistics, inventories, formulas, 
patterns, devices, manufacturing processes, or customer names.
    Comments containing material for which confidential treatment is 
requested must be filed in paper form, must be clearly labeled 
``Confidential,'' and must comply with FTC Rule 4.9(c). In particular, 
the written request for confidential treatment that accompanies the 
comment must include the factual and legal basis for the request, and 
must identify the specific portions of the comment to be withheld from 
the public record. See FTC Rule 4.9(c). Your comment will be kept 
confidential only if the General Counsel grants your request in 
accordance with the law and the public interest. Once your comment has 
been posted on the public FTC Web site--as legally required by FTC Rule 
4.9(b)--we cannot redact or remove your comment from the FTC Web site, 
unless you submit a confidentiality request that meets the requirements 
for such treatment under FTC Rule 4.9(c), and the General Counsel 
grants that request.
    Visit the FTC Web site to read this document and the news release 
describing it. The FTC Act and other laws that the Commission 
administers permit the collection of public comments to consider and 
use in this proceeding as appropriate. The Commission will consider all 
timely and responsive public comments that it receives on or before 
August 31, 2017. For information on the Commission's privacy policy, 
including routine uses permitted by the Privacy Act, see https://www.ftc.gov/site-information/privacy-policy.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2017-13471 Filed 6-27-17; 8:45 am]
 BILLING CODE 6750-01-P