Comments:

Primary Purpose – requiring a business to make a judgment call regarding the “primary purpose” of an email message, or to judge whether it is transactional or relationship in nature places an extraordinary burden on the business – particularly service-based businesses. Every person in the service chain, from sales, to client service to the help-desk must either second guess how their message will be judged, or a mechanism must be created to scrutinize each email for content. This is an incredibly expensive proposition that does not provide a meaningful countervailing public protection. The impact to the affected business, however, is costly at best and could result in negative impacts to the economy. Focusing on the content of the message also creates almost insurmountable enforcement issues, as is shown by the nature of the questions asked in the FTC’s public comment form. A person forwarding a “tell-a-friend” message has no means of knowing whether someone has opted-out of receiving commercial email. A mass-marketer cannot know if an individual company they are advertising has received an opt-out. This approach also places an enormous burden on the FTC in trying to enforce the regulations, requiring it to regulate each email message, at significant cost. Rather than focus on the purpose of the message, a better mechanism would focus on the relationship of the sender and the receiver, and exempt certain relationships. Exempted relationship should include: · Business to business emails where the companies currently have, or have had a contractual relationship within the last six months; and · Situations where the sender and recipient have a personal/professional relationship as reflected by prior and on-going face-to-face, telephonic and/or back-and-forth email exchanges of an individual or unique (as opposed to a mass-market) nature. There are multiple benefits to this approach. This will enable companies to more easily comply with the regulation (which is the desired outcome). It will allow the FTC to evaluate a company’s email messages by recipient type, rather than judging each message by its individual content. Since the sender and receiver have an on-going relationship, natural market forces (such as the recipient threatening to take its business elsewhere) will regulate unwanted emails. If the focus must be the content of the message, there must be some category of clearly exempted messages that do not require judgment calls like the “primary message” language requires. Exempted messages should include but not be limited to: · Emails including a service deliverable, obligatory notice or other contracted for advice, product or service; and · Unique emails that specifically address the individual recipient and its business needs or interests as a part of an on-going relationship; and · Emails containing a transactional or relationship message with a link or links to additional commercial messages so that the recipient must click to see the commercial messages but the sender is not required to maintain opt-out lists. If these approaches do not work, other, more invasive measures and content regulations could be considered, but only if the harm clearly justifies the cost of regulation.