Regulating Unsolicited Faxes And E-Mails
Door-to-door salesman and direct mail marketing campaigns have been replaced by unsolicited fax communications and the unsolicited e-mail advertising phenomenon known as "spam." The great volume of activity in these areas has prompted the federal government to consider (and in the case of faxes, to enact) legislation regulating the use of electronic and telephonic media to solicit and deliver correspondence. In certain instances, the legislation not only regulates the delivery of such solicitations, but provides specific penalties for violations. Unsolicited faxes are now prohibited. Unsolicited e-mail would not be banned but limitations would be placed on the manner of its delivery if pending federal legislation is enacted.
Facsimile Transmissions
To address the problems created by the ever increasing numbers of unsolicited faxes, Congress enacted the Telephone Consumer Protection Act of 1991 to prohibit advertisers from sending unsolicited advertisements via facsimile transmission without the recipient’s prior express invitation or permission. The act provides the recipient of an unsolicited facsimile advertisement a private right to bring an action for violation of the act’s requirements and/or injunctive relief. State courts have authority to award a recovery of either actual monetary loss or $500 in damages for each violation, whichever is greater. If the advertiser willfully or knowingly violates the act or its regulations, the court may award up to three times the mandated damages.
The act also requires that all telephone facsimile machines manufactured one year following the date of its enactment clearly mark in the margins at the top or the bottom of the first page (or each page) of the faxed transmission, the date and the time the fax was sent, a clear identification and the specific telephone number of the facsimile machine or sender. The act’s requirements and associated penalties have been successfully enforced by a substantial number of states. While most of the damage awards for violations have been granted to individual recipients of unsolicited faxes, several pending cases seek to certify entire classes of recipients to pursue class action lawsuits against the unsolicited fax advertisers.
E-mail Transmissions
Now, since the novelty of fax transmissions has worn off and stiff monetary penalties exist for unsolicited faxes, marketers and advertisers have begun to focus on communication via the Internet. Today, mass marketers direct huge e-mail campaigns to potential consumers via e-mail. Unsolicited bulk commercial e-mail is commonly referred to as "junk e-mails" or "spam." On July 18, 2000, the United States House of Representatives passed the Unsolicited Commercial Electronic Mail Act of 2000 (H.R. 3113). The bill is currently before the Committee on Senate Commerce, Science, and Transportation.
Spam Limitations
That bill would require all unsolicited commercial e-mail messages to contain a conspicuously displayed valid e-mail address to which a recipient may reply to request to receive no further messages. The bill would prohibit marketers from hiding the e-mail’s point of origination by including false routing information.
If a recipient indicates that he does not desire to receive further messages, the marketer is prohibited from sending other unsolicited e-mail messages to that recipient a reasonable time after receipt of recipient’s request. The bill would require identification of a message as unsolicited commercial e-mail and specifically include opt-out instructions allowing recipients to remove themselves from the mailing list.
ISP Enforcement
The bill would also allow a provider of Internet access service (commonly referred to as an ISP) to enforce its policies regarding unsolicited commercial e-mail messages for all ISP subscribers. ISP’s are required to make their policies regarding unsolicited commercial e-mail publicly available. If the ISP requires compensation to transmit unsolicited commercial e-mail to its subscribers, then it must provide an opportunity for its subscribers to formally opt-out of receiving unsolicited e-mail messages.
ISP Protections
ISP’s are protected against any liability for blocking the transmission or receipt of unsolicited commercial e-mail messages as long as they do so in good faith. They are also protected from liability for handling, transmitting, retransmitting or relaying unsolicited commercial e-mail in violation of the bill unless the ISP has actual knowledge that the transmission violates the requirements of its own policies or the specific mandates of the bill.
Enforcement
As proposed, violations of the above requirements would result in an injunction prohibiting such actions, monetary damages based upon the greater of actual loss or $500 per violation not to exceed $50,000 and, within the discretion of the court, attorneys fees. The bill would subject a violator to criminal penalties (jail time and monetary damages) for sending e-mail with fraudulent routing information. Specifically, the bill would penalize use of false or inaccurate domain name, header information, date or time stamps, originating electronic mail address or other information identifying the initiator or the routing of the e-mail message. The bill also empowers the Federal Trade Commission to take action against violators on behalf of itself and any individual that might not be able to effectively pursue legal action.
While this bill has not yet been enacted, it may be good business practice to voluntarily comply with the bill’s terms and make it easy for recipients to remove their name from an e-mail address list. Companies that fail to do so may incur the wrath of consumers who find unsolicited commercial e-mail messages clogging their e-mail particularly offensive. Those companies could well find that their actions punish them in the marketplace.
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