Dirck Hargraves, Esq. Susan Grant Ken McEldowney
Dear Mr. Hargraves, Ms. Grant, & Mr. McEldowney: This is in response to the above-referenced Petition requesting that the Federal Trade Commission initiate a trade regulation rule proceeding aimed at adopting a rule under Section 18 of the FTC Act, 15 U.S.C. § 57a, that would prohibit certain deceptive aspects of unsolicited commercial email ("UCE" or "spam"). The Commission recognizes that the Petition identifies an important consumer protection concern: the proliferation of spam that misrepresents the source, sender, subject, or ability to stop receiving future messages. The Petition asserts that consumers and businesses are being injured by such practices. The primary effect of a Section 18 rule would be to "define with specificity" acts or practices that are unlawful - that is, that violate Section 5(a) of the FTC Act, 15 U.S.C. § 45(a) because they are unfair (i.e., they cause or are likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition, 15 U.S.C. § 45(n)) or are deceptive (i.e, they are likely to mislead consumers acting reasonably under the circumstances about a material fact. Cliffdale Associates, Inc., 103 F.T.C. 110, 164-65 (1984)). Thus, such a rule would eliminate the need to establish in each case that a particular practice relating to spam is unfair or deceptive, and thus violates Section 5(a) of the FTC Act. However, proving that a targeted practice is unfair or deceptive and therefore violates Section 5(a) is relatively straightforward in most cases. A more difficult task would not be addressed by such a rule: identifying and locating the actual spammer. A rule would offer no enhancement of the Commission's ability to accomplish this important aspect of its law enforcement. The Commission therefore has concluded that the possible benefits promised by such a rule do not justify the significant expenditure of time and resources a rulemaking would require. Rather than engage in a rulemaking, the Commission believes that, at this time, it can more efficiently and effectively protect the interests of consumers by aggressively continuing to direct law enforcement activities already available under Section 5(a) against particular businesses or individuals that make false or misleading representations in spam email. We emphasize, however, our belief that spam is an enormous and increasing problem for consumers and businesses. To address various issues surrounding spam and to explore potential solutions to the spam problem, we will hold a three-day public forum on April 30-May 2, 2003. We encourage you to participate in this forum, and we hope that it will help inform and further address the issues raised in the Petition. The information and analysis you provided have contributed significantly to the Commission's consideration of the issues raised by the Petition. The Commission and its staff look forward to your continued cooperation with our law enforcement and education efforts in this area. By direction of the Commission. Donald S. Clark |
