Virginia State Bar Annual Meeting Corporate Counsel Section Update on Do Not Call & Spam Michael Goodman Federal Trade Commission

FTC Basics The FTC is the nation’s only general jurisdiction consumer protection agency The FTC is the nation’s only general jurisdiction consumer protection agency FTC Act: Section 5 prohibits unfair or deceptive business practices FTC Act: Section 5 prohibits unfair or deceptive business practices Unlike many federal agencies, we have authority to file our own cases in federal district court Unlike many federal agencies, we have authority to file our own cases in federal district court

Federal Trade Commission Telemarketing Sales Rule 2003 amendments 2003 amendments Creation of National Do Not Call Registry Creation of National Do Not Call Registry Caller ID transmission Caller ID transmission Abandoned calls/ Predictive dialers Abandoned calls/ Predictive dialers New coverage of calls on behalf of charities New coverage of calls on behalf of charities

Federal Trade Commission National Do Not Call Registry - I The Basics The Basics Creation Creation Litigation Litigation Compliance Compliance Jurisdiction Jurisdiction Enforcement Enforcement

Federal Trade Commission National Do Not Call Registry - II Registry Details Registry Details Fees Fees Safe Harbor update Safe Harbor update Data Sharing Data Sharing Established Business Relationships & other exceptions Established Business Relationships & other exceptions

Federal Trade Commission CAN-SPAM Act of 2003 (“Controlling the Assault of Non-Solicited Pornography and Marketing Act”) Effective date: January 1, 2004 Effective date: January 1, 2004 Creates civil and criminal violations Creates civil and criminal violations Enforced by federal and state law enforcement and ISPs Enforced by federal and state law enforcement and ISPs Directs FTC to write rules and reports Directs FTC to write rules and reports

Federal Trade Commission CAN-SPAM Act: New Civil Violations False or misleading header information False or misleading header information Deceptive subject lines Deceptive subject lines Failure to provide an opt-out method and honor opt-out requests Failure to provide an opt-out method and honor opt-out requests Failure to include: Failure to include: Identification that the message is an advertisement Identification that the message is an advertisement Sender’s valid physical postal address Sender’s valid physical postal address For “sexually oriented” messages: For “sexually oriented” messages: Failure to include warning label (established by FTC) Failure to include warning label (established by FTC) Failure to require additional steps to view material after opening message Failure to require additional steps to view material after opening message

Federal Trade Commission CAN-SPAM Act: New Rules FTC CAN-SPAM Rulemaking FTC CAN-SPAM Rulemaking “Commerical message” “Commerical message” “Transactional or relationship message” “Transactional or relationship message” Aggravated violations Aggravated violations 10-business-day opt out 10-business-day opt out General rulemaking authority General rulemaking authority

Federal Trade Commission CAN-SPAM Act: New Reports Reports Reports Do-Not- Registry: Authorized, but not required Do-Not- Registry: Authorized, but not required Reward system to promote enforcement Reward system to promote enforcement Labeling of all commercial Labeling of all commercial Effectiveness report to Congress Effectiveness report to Congress