FCC Can-SPAN Act

Background

Electronic mail (“e-mail” and text messaging) has become an important and popular way to communicate. Millions of consumers rely on e-mail every day to communicate at work and at home. As a result, marketers are increasingly using e-mail and text messaging to sell products and services. Many consumers find unsolicited e-mail – also known as “spam” – annoying and time consuming. In addition, when unwanted messages are sent to cell phones, they can be intrusive and costly.

CAN-SPAM Act and FCC Anti-Spam Rules

In 2003, Congress enacted a new law, entitled “Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003” (“CAN-SPAM”). The law, which took effect on January 1, 2004, imposes limitations on the sending of unsolicited commercial e-mail.

In August 2004, as required by the CAN-SPAM Act, the Federal Communications Commission (FCC) adopted new rules to protect consumers from receiving unsolicited commercial messages on their wireless devices. “Wireless devices,” as defined by the CAN-SPAM Act, refers to cell phones and some other personal or mobile wireless devices, such as pagers. The definition does not include laptop computers, even if they use a wireless connection.

The FCC’s rules are now in effect. Under those rules, your wireless service provider is required to provide the FCC with a list of all Internet domain names used to transmit electronic messages to wireless devices, including cell phones and pagers. Those domain names are posted on the FCC’s website, at www.fcc.gov, for use by those who send commercial electronic mail messages to help them identify Domain names to which they may not send unsolicited e-mail because the messages go to wireless devices.

CAN-SPAM Act, Telephone Consumer Protection Act, and FCC Telemarketing Rules

The CAN-SPAM Act supplements some consumer protections that were already established by the Telephone Consumer Protection Act (TCPA) of 1991. Together, these two laws impose limitations on both unsolicited telephone marketing calls and any other calls to a paging service, cellular telephone service, other radio common carrier service, or any service for which the person being called would be charged for the call. Under the TCPA rules, a “call” includes text messaging if the messaging is sent to a telephone number rather than to an e-mail address.

What Is the FCC’s Role in Regulating Unsolicited Electronic Messages on Mobile Devices?

Electronic messages can be sent to mobile devices using a variety of methods. The type of technology used to send the electronic message determines how the electronic message is regulated. Through existing and new laws, however, consumers are protected from unwanted commercial messages, calls from auto-dialing machines and unwanted solicitation calls.

E-mail to wireless devices

No one may send a commercial message to your wireless e-mail account unless you have given your explicit permission – either orally, on paper, or electronically – before the message is sent.

• This ban applies to wireless accounts, such as your account with your cellular phone provider.
• The ban does not include ordinary e-mail that you may choose to access from your wireless device. For example, if you set up your own desktop computer to forward all your e-mail to your cell phone, those messages are not covered by these rules.
• The rules cover only messages that are “commercial” as that term is used in the CAN-SPAM Act – when the main purpose of the message is to advertise or promote a commercial product or service. The rules do not cover non-commercial messages, such as messages about candidates for public office. They also do not include “transactional and relationship messages” such as messages from a company about the status of an existing account you have with that company.

Anyone who wants your permission to send you a commercial message must tell you the name of the entity that actually will be sending the message as well as the name of the entity whose products or services will be advertised, if different from the sender. Even after you have given your permission to a person or entity to send you commercial messages, you can stop receiving future commercial messages from that sender at anytime – just use the e-mail address or website provided by the sender to withdraw or cancel your permission. If you give permission to send you commercial messages through another method, such as by dialing a short code on your cell phone, you must also be given the option of rejecting future messages in the same way as you provided your permission.

Text messages to wireless devices

Those text messages that are sent through what looks like an e-mail address must also comply with the rules about wireless e-mail discussed above. Most types of text messages, however, are sent from one cell phone to another and are not covered by the CAN-SPAM Act. Nonetheless, the Telephone Consumer Protection Act and the National Do-Not-Call Registry already provide certain protections to wireless phone subscribers.

• No one may use an automatic dialing machine to call your wireless phone number – including to send a text message to that telephone number – unless you have given prior express permission for the call or the call is made for an emergency purpose, i.e., the call is necessary in a situation that affects the health and safety of consumers. There is a limited exception allowing cell phone companies to contact their own subscribers.
• If you have registered your cell phone number on the National Do-Not-Call Registry, no one may make a telephone solicitation to that telephone number, unless you have given prior express permission for the solicitation or have an established business relationship with the caller. If you tell a company not to call again – even if it has a business relationship with you – that company is prohibited from calling you with solicitations.

All Commercial E-mail

The CAN-SPAM Act contains rules that all commercial e-mail senders must follow – not just for sending messages to wireless devices. The FCC can take action for violations of the general provisions outlined below when a message is sent to any wireless device or e-mail address, provided the message is sent or initiated by or on behalf of a communications company, i.e., telephone, radio, paging, cable, or television companies. The Federal Trade Commission (FTC) is responsible, on the other hand, if the e-mail message is sent to a non-wireless device by or on behalf of other, non-communications-related companies. In general, all electronic messages must meet the following requirements:

• Identification – Unsolicited commercial e-mail sent to non-wireless accounts must be clearly identified as solicitations or advertisements for products and services.
• Offering a Way to Reject Future Messages – Commercial e-mail senders must provide easily-accessible, legitimate ways for recipients to reject future messages from that sender.
• Return Address – All commercial e-mail, and e-mail considered transactional and relationship messages (about existing transactions), must contain legitimate return e-mail addresses, as well as the sender’s postal address.
• Subject Lines – Commercial e-mail senders must use subject lines that are accurate. Using misleading or bogus subject lines to trick readers into opening messages is prohibited.

Many states have already enacted anti-spam legislation. The CAN-SPAM Act is intended to supersede – or replace – those state or local laws aimed specifically at the use of electronic mail to send commercial messages, but the states are allowed to enforce parts of the Act. (The CAN-SPAM Act does not affect other state laws, which may affect commercial messages, such as those laws related to contracts and tort law. Nor does it affect those laws related to fraud and computer crime.)

What Should You Do if You Receive an Unwanted Commercial Message on Your Cell Phone?

If you receive (1) an unwanted commercial message sent to a wireless device, or (2) a telephone solicitation made to a wireless device for which the phone number was registered on the National Do-Not-Call Registry, or (3) any auto-dialed text message on your cell phone or wireless device, you may file a complaint with the FCC. While the FCC cannot award monetary or other damages and does not settle individual consumer complaints against spammers and telemarketers, it can issue citations or impose fines against those violating the CAN-SPAM Act, the Telephone Consumer Protection Act, the National Do-Not-Call Registry, and the FCC’s related rules.

You may file a complaint with the FCC by e-mail ([email protected]), the Internet (www.fcc.gov/cgb/complaints.html), telephone 1-888-CALL-FCC (1-888-225-5322) voice or 1-888-TELL-FCC (1-888-835-5322) TTY, or mail:

Federal Communications Commission
Consumer & Governmental Affairs Bureau
Consumer Inquiries and Complaint Division
445 12th Street, SW
Washington, DC 20554

Include the following in your complaint:

• Your name, address, and daytime telephone number;
• The telephone number or e-mail address at which you received an unsolicited commercial message or call, or an auto-dialed call;
• As much specific information about the message as possible, including:
  • The date and time you received the message;
  • The identity of the company that sent the message to you;
  • The products or services that were promoted in the message;
  • The sender’s e-mail address and any other e-mail addresses, street addresses, or telephone numbers that may be referenced in the message;
  • A description of any contact you may have had with the entity that sent the message, including whether you have done business with that entity before receiving the message/call and any steps you may have taken to reject future messages.

What Should You Do About Commercial E-Mail You Receive on Non-wireless Devices, Such as Your Computer at Home?

If you wish to complain about a non-wireless commercial e-mail message that came from or promotes the services of a communications company, such as a telephone company, a radio or television station, or a cable company, you may file a complaint with the FCC following the steps outlined previously. Otherwise, you may file a complaint with the FTC. To file a complaint with the FTC or to get free information on e-mail issues in general, visit www.ftc.gov/spam or call toll-free, 1-877-FTC-HELP (1-877-382-4357) voice; or 1-866-653-4261 TTY.

For this or any other consumer publication in an accessible format (electronic ASCII text, Braille, large print, or audio) please write or call us at the address or phone number below, or send an e-mail to [email protected].

To receive information on this and other FCC consumer topics through the Commission’s electronic subscriber service, click on www.fcc.gov/cgb/emailservice.html.

This document is for consumer education purposes only and is not intended to affect any proceeding or cases involving this subject matter or related issues.

Federal Communications Commission · Consumer & Governmental Affairs Bureau · 445 12th St. S.W. · Washington, DC 20554
1-888-CALL-FCC (1-888-225-5322) · TTY: 1-888-TELL-FCC (1-888-835-5322) · Fax: 1-866-418-0232  www.fcc.gov/cgb/