FCC, EBR, CAN-SPAM, opt-in, opt-out … it all gets a little confusing. The rules governing the way organizations can deliver their advertising and solicitation messages are driven by the medium (fax, telephone, e-mail, snail mail), by the message (unsolicited advertising, charitable solicitations, business communications), and by the manner (opt-in, opt-out, established business relationships (EBR), required disclosures).
Let's start with faxes. Here, the content of the message is key. However, all faxes (no matter what the content) must include
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the date and time the message was sent,
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the sender's identity and registered legal name, and
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the number of the sending fax machine.
Effective July 1, 2005, if the fax is an unsolicited advertisement, the sender also must obtain the recipient's prior written, signed permission to receive such faxes from a specific sender to a specific fax number. The current requirements, which say that an established business relationship constitutes prior permission, will no longer apply. The rules that govern the sending of unsolicited fax advertisements are known as opt-in requirements. Other communications sent via fax (e.g., straight business communications) do not require prior permission.
Can the Spam
For e-mails, the CAN-SPAM Act of 2003 states that any material sent by e-mail to advertise or promote a product or service (including educational materials, seminars, conferences, sponsorships, membership drives, etc.) must
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identify the e-mail as an advertisement or solicitation,
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provide an opt-out mechanism allowing the recipient to opt-out of receiving future e-mails, and
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include the sender's physical address.
The laws controlling the use of commercial e-mails are known as “opt-out” requirements. Transactional or relationship e-mails (e.g., those sent to facilitate, complete, or confirm a previous commercial transaction; those that provide information on subscriptions, memberships, accounts, or similar ongoing relationships; or those that provide information directly related to an employment relationship or benefit plan) are not subject to the CAN-SPAM Act's requirements. Additionally, the act makes it illegal to falsify transmission information, use deceptive subject headings, and continue to send e-mails if the recipient has opted out.
Don't Call Us, We'll …
For telephone communications, there is an across-the-board opt-out opportunity — the now well-known National Do Not Call Registry — which restricts solicitors from contacting registered individuals. (It does not apply to businesses.) But, depending on the message, there are exceptions. For example, solicitations for charitable contributions are exempt from compliance with the Do Not Call Registry, even when the call is made by a for-profit independent telemarketer, as long as it's not combined with the sale of any product or service. Even so, all callers must promptly disclose the name of the organization making the request and the purpose of the call. In addition, they must track, and not call, any individual who requests not to be called again. Not-for-profit organizations attempting to sell products, educational courses, etc. by phone must comply with all legal requirements governing telephone solicitations, including the Do Not Call Registry.
And then there is good old snail mail. Guess what? You can send all the unsolicited advertisements and promotions you want by U.S. mail. There are no prohibitions.
Jed Mandel is a partner in the Chicago-based law firm of Neal, Gerber & Eisenberg, where he heads the trade and professional association practice. Reach him at jmandel@ngelaw.com.
