Nasir Pasha, Esq.

Can Spam be Rehabilitated?

I hate spam. You hate spam. Everybody here hates spam. Nonetheless, without going off into Python lore or waxing nostalgic about Depression-era rations, do texts and email still have a place in the marketing strategy of small businesses?

Two laws in particular, the CAN-SPAM Act, (which stands for Controlling the Assault of Non-Solicited Pornography and Marketing) and the Telephone Consumer Protection Act (TCPA), impose significant restrictions on the commercial use of electronic communication.  The first, enforced by the FTC, regulates unwanted commercial messages sent to non-wireless devices, like your home computer.  The second, enforced by the FCC, extends protections to your mobile phone.

CAN-SPAM Compliance Guidelines

In its compliance guidelines, the FTC outlines seven basic rules for marketing emails.

  • The header must be accurate and identify the person or business who is sending the message.
  • The subject line must accurately reflect the content of the message.
  • Senders must conspicuously identify the message as an advertisement.
  • The message must contain a valid physical postal address, which may be a P.O. Box,
  • The message must explain how the recipient can opt out of receiving messages in the future.
  • The sender must honor those requests within 30 days.
  • If your business hires another company to handle online marketing, both parties are responsible for complying with the law.

These restrictions do not cover “transactional or relationship” messages intended to facilitate an existing transaction.  The FTC will look at the predominant purpose in a message that functions in both ways.  Keep in mind that the penalties for non-compliance can be stiff.  Each separate violation of the CAN-SPAM Act may cost up to $16,000.

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 The TCPA Bans Unwanted Texts

The law bans text messages sent to mobile phones using an auto dialer, even if consumers have not placed their numbers on the National Do-Not-Call List.  In coordination with the CAN-SPAM Act, the FCC also restricts commercial emails forwarded to your mobile phone.  The ban does not cover emergency messages or those to which a consumer has consented.  For commercial texts, the consumer must consent in writing and be allowed to opt out, even after initially consenting.  For political or non-profit messages, the consent may be oral. 

So, What’s Left of the Marketing Potential?

Electronic advertising has always been tempting because it can be inexpensive.  The coupling of the words “pornography” and “assault” in the full title of the CAN-SPAM Act should tip you off as to how well this approach has been received. Alienating your customers is never inexpensive.

Nonetheless, there may be something salvageable, here.  Text marketing seems problematic, unless you have prior consent of the individual you are trying to reach.  It may a tool for generating repeat business with an existing customer.  Email marketing looks a little better.  Using it well requires carefully identifying your target audience, crafting your communication to maximize its transactional or relationship-building aspect and offering something that is genuinely valuable to your customers, so that they, in fact, welcome your message.     


Legally Sound | Smart Business Episode 17

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