|Received:||4/20/2004 11:26:22 PM|
|Organization:||Countrywide Financial Corporation|
|Agency:||Federal Trade Commission|
A.1. The net impression test must be applied flexibly, taking into account the fact that an email's appearance may vary widely based on the recipient's browser, email client, Internet Service Provider, screen size, monitor setting, and a consumer's ability to receive HTML. Companies should not be subjected to uncertainty in application of the law and regulations if they make reasonable attempts to: (a) deliver email that contains some transactional or requested information and some related marketing material; and, (b) place the transactional or requested information in a more prominent location than the related marketing material. Determining primary purpose should be based solely on the content of the email message and the nature of the relationship between the sender and the recipient, and not on the legal status of the sender, or any financial support received in connection with sending of the message. The funding or sponsorship of a newsletter, or other financial support for electronic mail messages, should not be relevant to the determination of primary purpose. The relevant inquiry is whether the recipient of the newsletter was aware that additional related advertising content would be included along with the newsletter. Similarly, the identity of an email's sender should not affect the determination of whether or not the primary purpose of the sender's email is a commercial advertisement or promotion. B.1. We urge the FTC to use its discretionary authority to expand the categories of emails that are clearly "transactional" or "relationship" messages. We suggest the following edits to Sec 3(17)(A)(i) to (iv) to address the four boxes checked above: (i) [intended] to facilitate, complete, [supplement, confirm, or provide information related to] a commercial transaction that the recipient has previously agreed to enter into with the sender; (ii) to provide warranty information, product recall information, or safety or security information [, including security-related notifications or education,] with respect to a commercial product or service used or purchased by the recipient; (iii) to provide-- * * * (III) at regular periodic intervals, account balance [or other account-related] information or other type of account statement with respect to, a subscription, membership, account, loan, [agency or other contractual relationship as a business representative,] or comparable ongoing commercial relationship involving the ongoing purchase [, use, or promotion] by the recipient of products or services offered by the sender; (iv) Strike the word "directly" C. In some instances, it is difficult for reputable companies to meet the ten day period. These instances are: (1) use of third party vendors for email communications; (2) use of encryption technologies or additional "trusted third parties" (such as a credit reporting agency) to help protect consumer names and email addresses; (3) processing opt-outs received through mechanisms other than those designated by the sender; and, (4) one-to-one emails by a company's individual sales representative. The 10 day window should not apply in these situations. E.1.2 There would be unreasonable costs and burdens associated with treating four different advertisers as the "sender" of an email newsletter or other commercial email. It is difficult for multiple advertisers to deliver unique suppression files to the actual sender. In addition, there is a potential for misuse of the consumer's name and email address if the advertiser does not have sufficient knowledge of the sender's reputation after performing due diligence. E.2.3 and E.2.4 Do not curb legitimate forward-to-a-friend technology which conveniently provides useful, highly relevant information to the recipient. E.4 FTC should clarify that a "from" line is not false or misleading simply because the "from" address uses a domain assigned to an agent acting at the direction of and on behalf of the sender.