Regulatory Corner

Date: March 8, 2004
To: AAF Members
From: Clark Rector, Jr., SVP-state government affairs
Jeff Perlman, executive vice president-government affairs
Re: Possible FTC “Do-Not-E-mail” Registry

At the direction of Congress, the Federal Trade Commission is investigating the feasibility of enacting a “do-not-e-mail” registry for unsolicited commercial e-mail (UCE). The Commission must report to Congress by June 16. The law does not require the Commission to implement the registry. In fact, FTC Chairman Muris has expressed concern that a registry would be impossible to enforce.

Attorneys in the FTC's Division of Marketing Practices held meetings with interested parties to discuss the feasibility of a number of different options for a “do-not-e-mail” registry. I recently had the opportunity to attend one of these discussion groups.

The FTC officials asked about four possible models for the registry. They are requesting feedback on the feasibility of each, including comment on technical and privacy issues, as well as the likelihood of success. The models are:

  1. Base the implementation of the “do-not-e-mail’ registry on the telemarketing “do-not-call” registry. Consumers would sign up for the registry, which would then be given to marketers to “scrub” their mailing lists to remove all consumers on the registry.
  2. Create domain wide opt-outs from UCE. Under this scenario, a domain, such as aaf.org, would opt-out, and all consumers with an aaf.org e-mail address would no longer receive UCE. Consumers would have the option of whether or not to choose an “opt-out” domain. In theory, larger Internet service providers could offer both choices.
  3. Create a third party forwarding service for UCE. The “do-not-e-mail” list would be maintained by the third-party service and marketers would send all UCE through the service. The service would not be maintained by the government.
  4. Create a registry of authenticated e-mail marketers. Under this plan authenticated marketers would receive a registration number or marker to be included in the email. Internet service providers could then filter UCE based upon the authentication.

At this point, each plan is merely a concept being looked at by FTC staff. There are obviously many details and issues that would need to be addressed should any one be adopted. The staff is actively seeking input on the positives and negatives of each plan from industry and other interested parties. If you have any questions or comments for the Commission, please contact me, and I will let you know where to submit them.