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8/5/2004
07:04 PM
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FCC Tries To Make Mobile Spam Opt In

The commission ruled that senders of commercial E-mail messages need to get consent to send them to mobile phones and pagers.

The FCC ruled Wednesday that senders of unsolicited commercial E-mail may not send marketing messages to mobile phones and pagers without explicit prior consent.

The ruling represents an effort to implement the Can-Spam Act of 2003 on wireless devices. It applies specifically to E-mail addresses provided by Commercial Mobile Radio Service (CMRS) providers, as opposed to E-mail addresses offered by traditional Internet service providers and accessed through a wireless device. It also doesn't cover Short Message Service messages sent to mobile phone numbers.

To assist marketers with compliance, the commission is requiring CMRS providers to supply a list of Internet domains associated with wireless subscriber messaging services. This list, which won't contain individual addresses, will be used as a do-not-spam list for mobile-focused marketers trying not to run afoul of the law.

In June, the Federal Trade Commission decided that a general do-not-spam list to protect consumers wouldn't be feasible. In a statement, FCC chairman Michael Powell said the order "shields consumers' wireless devices from these unsolicited, costly, and sometimes indecent messages."

That cost element is one reason the FCC took the unusual step of making mobile spam opt-in, in contrast with the opt-out approach the United States has adopted for other forms of spam, says attorney Jim Brelsford, co-head of the privacy practice at the law firm Jones Day. "There's some actual cost to the recipient to deal with spam in the context of mobile devices," he says.

While the Can-Spam law has been criticized for sanctioning spam that meets regulatory requirements, Brelsford thinks the FCC's mobile spam provisions will be helpful. Even if some marketers look at the rules as a lawsuit-safe loophole, he contends that mobile spam won't generate sales because it's not interactive like regular E-mail. "I don't think it's effective," he says.

While it doesn't cover SMS spam, that's proven less of a problem in the United States than in Europe and Japan. At the Federal Trade Commission Forum last year, AT&T Wireless said that its customers had not been significantly affected by SMS spam but that the company continues to take proactive steps to prevent it.

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