**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | CG Docket No. 04-53          |
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| Rules and Regulations            | ) | CG Docket No. 02-278         |
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**ORDER**

**Adopted: March 24, 2005 Released: March 25, 2005**

By the Acting Chief, Consumer & Governmental Affairs Bureau:

## Introduction

In this Order, we amend the Federal Communications Commission's
(Commission or FCC) rules addressing unwanted mobile service commercial
messages to incorporate by reference new definitions adopted by the
Federal Trade Commission (FTC). In adopting rules to implement portions
of the Controlling the Assault of Non-Solicited Pornography and
Marketing Act of 2003 (CAN-SPAM Act or Act),[^1] the Commission directed
the Consumer & Governmental Affairs Bureau (CGB) to revise the
regulations to reflect updated or amended definitions in the FTC's
rules.[^2] The Act gives the FTC responsibility for making the ultimate
determination of when electronic mail is to be considered "commercial"
and for refining the definitions of "transactional or relationship"
messages.[^3]

On December 16, 2004, the FTC adopted its final CAN-SPAM definitions and
implementation rules, defining the criteria for determining whether an
electronic message is "commercial" in nature, and refining the
definition of "transactional or relationship" messages.[^4] This
definition rule becomes effective on March 28, 2005.[^5] Consequently,
we amend our CAN-SPAM rules to reflect the FTC's newly adopted
definitions and incorporate them by reference in our rules so that our
rules will reflect any further revisions the FTC makes.

## Background

### CAN-SPAM Implementation

Section 14 of the CAN-SPAM Act required the FCC, in consultation with
the FTC, to promulgate rules to protect consumers from unwanted "mobile
service commercial messages."[^6] On August 4, 2004, the Commission
released the *CAN-SPAM Implementation Order* to fulfill this
directive.[^7] The CAN-SPAM Act and the Commission's implementing rules,
which mirror the Act, define a "mobile service commercial message" as a
type of "commercial electronic mail message."[^8] A "commercial
electronic mail message" is in turn defined in the Act as an electronic
message for which the "primary purpose" is "commercial advertisement or
promotion of a commercial product or service" as defined in the Act.[^9]
The Act further states that "commercial" messages do not include
"transactional or relationship" messages,[^10] such as messages
regarding product safety or security information, notification to
facilitate a commercial transaction, and notification about changes in
terms, features, or the customer's status.[^11]

The CAN-SPAM Act gives the FTC responsibility for making the ultimate
determination of the "primary purpose" of such messages, as well as the
authority to modify the definition of transactional or relationship
messages.[^12] Recognizing this, the Commission noted that the FCC's
rules would need to be amended to cross-reference the FTC's criteria for
determining the primary purpose of "commercial" messages, and rules
defining "transactional or relationship" messages.[^13] The Commission
delegated authority to the Consumer & Governmental Affairs Bureau to
amend the rules to reflect those changes.[^14]

## Discussion {#discussion .Style-Heading-2-+-11-pt-Black}

### Definition of "commercial electronic mail message"

The Commission's current rules define a "commercial electronic mail
message" to mean:

the term as defined in the CAN-SPAM Act, 15 U.S.C. § 7702. The term is
defined as "an electronic message for which the primary purpose is
commercial advertisement or promotion of a commercial product or service
(including content on an Internet website operated for a commercial
purpose)." The term "commercial electronic mail message" does not
include a transactional or relationship message.[^15]

1.  As noted above, the FTC issued rules interpreting the CAN-SPAM Act
    and providing the criteria to be used to determine the "primary
    purpose" of an electronic mail message.[^16] The FTC's definition
    states:

> \(1\) If an electronic mail message consists exclusively of the
> commercial advertisement
>
> or promotion of a commercial product or service, then the "primary
> purpose" of
>
> the message shall be deemed to be commercial.
>
> \(2\) If an electronic mail message contains both the commercial
> advertisement or
>
> promotion of a commercial product or service as well as transactional
> or
>
> relationship content as set forth \[elsewhere in the rules\], then the
> "primary
>
> purpose" of the message shall be deemed to be commercial if:
>
> \(i\) A recipient reasonably interpreting the subject line of the
> electronic mail
>
> message would likely conclude that the message contains the commercial
>
> advertisement or promotion of a commercial product or service; or
>
> \(ii\) The electronic mail message's transactional or relationship
> content as set
>
> forth \[elsewhere in the rules\] does not appear, in whole or in
>
> substantial part, at the beginning of the body of the message.
>
> \(3\) If an electronic mail message contains both the commercial
> advertisement or
>
> promotion of a commercial product or service as well as other content
> that is not
>
> transactional or relationship content as set forth \[elsewhere in the
> rules\],
>
> then the "primary purpose" of the message shall be deemed to be
> commercial if:
>
> \(i\) A recipient reasonably interpreting the subject line of the
> electronic mail
>
> message would likely conclude that the message contains the commercial
>
> advertisement or promotion of a commercial product or service; or
>
> \(ii\) A recipient reasonably interpreting the body of the message
> would likely
>
> conclude that the primary purpose of the message is the commercial
>
> advertisement or promotion of a commercial product or service. Factors
>
> illustrative of those relevant to this interpretation include the
> placement of
>
> content that is the commercial advertisement or promotion of a
> commercial
>
> product or service, in whole or in substantial part, at the beginning
> of the
>
> body of the message; the proportion of the message dedicated to such
>
> content; and how color, graphics, type size, and style are used to
> highlight
>
> commercial content.[^17]

2.  The FTC also adopted a rule stating that the "primary purpose" of a
    commercial electronic mail message should be deemed "transactional
    or relationship," and therefore outside of the definition of
    "commercial," if the message consists exclusively of transactional
    or relationship content, as set forth in the FTC's rules.[^18]
    Therefore, we amend our rules to cross-reference the FTC rules that
    contain the criteria for determining the primary purpose of a
    message under the CAN-SPAM Act.[^19]

### Definition of "transactional or relationship" message

In addition to defining a "commercial electronic mail message," the
Commission's current rules define a "transactional or relationship
message" to mean:

any electronic mail message the primary purpose of which is\-- i) to
facilitate, complete, or confirm 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 with respect to a commercial product or service
used or purchased by the recipient; iii) to provide (I) notification
concerning a change in the terms or features of; (II) notification of a
change in the recipient's standing or status with respect to; or (III)
at regular periodic intervals, account balance information or other type
of account statement with respect to a subscription, membership,
account, loan, or comparable ongoing commercial relationship involving
the ongoing purchase or use by the recipient of products or services
offered by the sender; (iv) to provide information directly related to
an employment relationship or related benefit plan in which the
recipient is currently involved, participating , or enrolled; or (v) to
deliver goods or services, including product updates or upgrades, that
the recipient is entitled to receive under the terms of a transaction
that the recipient has previously agreed to enter into with the
sender.[^20]

9\. In its recent rules, the FTC adopted a definition of transactional
or relationship messages that does not vary from the definition found in
the CAN-SPAM Act, or the Commission's rules, which mirror the CAN-SPAM
Act definition.[^21] As noted above, however, the Act allows the FTC to
modify the definition of transactional or relationship messages.
Therefore, we amend the FCC's rules to cross-reference the FTC's rules,
so that the FCC's rules reflect the FTC's rules as they stand now and
will also reflect any modifications that the FTC makes to its rules. We
note for the record that the FTC provided further guidance for
non-profit organizations for interpreting the definition of
transactional or relationship messages.[^22]

## ORDERING CLAUSES

10\. Accordingly, IT IS ORDERED that, pursuant to the authority
contained in sections 1-4, 222, 227 and 303(r) of the Communications Act
of 1934, as amended, 47 U.S.C. §§ 151-154, 222, 227, and 303(r), and the
Controlling the Assault of Non-Solicited Pornography and Marketing Act
of 2003, Pub. L. No. 108-187, 117 Stat. 2699, 15 U.S.C. §§ 7701-7713, 18
U.S.C. § 1037 and 28 U.S.C. § 994,

and the authority delegated to the Consumer & Governmental Affairs
Bureau in the Commission's *CAN-SPAM Implementation Order*, FCC 04-194
(adopted August 4, 2004), this Order is ADOPTED as set forth herein, and
Part 64 of the Commission's rules, 47 C.F.R. § 64.3100, is amended as
set forth in Appendix A.

FEDERAL COMMUNICATIONS COMMISSION

Jay Keithley

Acting Chief, Consumer & Governmental Affairs Bureau

**APPENDIX A**

**[Final Rules]{.underline}**

Part 64 of the Code of Federal Regulations is amended as follows:

**PART 64** **-- MISCELLANEOUS RULES RELATING TO COMMON CARRIERS**

**Subpart BB -- Restrictions on Unwanted Mobile Commercial Service
Messages**

Section **64.3100(c)(2) and 64.3100(c)(8) are revised** as follows:

[§ 64.3100 Restrictions on mobile service commercial
messages]{.underline}.

\(a\) \*\*\*

\(b\) \*\*\*

\(c\) [Definitions.]{.underline} For the purpose of this subpart:

> \(1\) \*\*\*
>
> \(2\) [Commercial electronic mail message]{.underline} means the term
> as defined in the CAN-SPAM Act, 15 U.S.C. § 7702 and as further
> defined under 16 C.F.R § 316.3. \*\*\*
>
> \(3\) \*\*\*
>
> \(4\) \*\*\*
>
> \(5\) \*\*\*
>
> \(6\) \*\*\*
>
> \(7\) \*\*\*
>
> \(8\) [Transactional or relationship message]{.underline} means the
> following and is further defined under 16 C.F.R. § 316.3: any
> electronic mail message the primary purpose of which is\-- i) to
> facilitate, \*\*\*

\(d\) \*\*\*

\(e\) \*\*\*

\(f\) \*\*\*

[]{.mark}

[^1]: Controlling the Assault of Non-Solicited Pornography and Marketing
    Act of 2003, Pub. L. No. 108-187, 117 Stat. 2699 (2003), *codified
    at* 15 U.S.C. §§ 7701-7713, 18 U.S.C. § 1037 and 28 U.S.C. § 994
    (*CAN-SPAM Act*).

[^2]: *See Rules and Regulations Implementing the Controlling the
    Assault of Non-Solicited Pornography and Marketing Act of 2003;
    Rules and Regulations Implementing the Telephone Consumer Protection
    Act of 1991,* CG Docket Nos. 04-53, and 02-278, Order, 19 FCC Rcd
    15927, 15952, para. 68 (2004) (*CAN-SPAM Implementation Order)*
    ("Therefore, we delegate to the Consumer & Governmental Affairs
    Bureau the authority to amend the rules we adopt today to ensure
    consistency with any rule the FTC adopts under the CAN-SPAM Act to
    further define 'commercial' and 'transactional or relationship'
    messages."). *See also id.* at 15955, para. 81.

[^3]: *CAN-SPAM Act*, Sections 3(2)(C), 3(17)(B), *codified at* 15
    U.S.C. §§ 7702(2)(C), 7702(17)(B).

[^4]: *See Federal Trade Commission*, RIN 3084-AA96, Definitions and
    Implementation Under the CAN-SPAM Act, Final Rule, 70 Fed. Reg.
    3110-3129 (Jan. 19, 2005), *codified at* 16 C.F.R. §§ 316.1-316.5
    (*FTC Final Rules*).

[^5]: *Id.*

[^6]: *See CAN-SPAM Act*, Section 14, *codified at* 15 U.S.C. § 7712.

[^7]: *CAN-SPAM Implementation Order, supra.*

[^8]: The Act defines "mobile service commercial message" as a
    "commercial electronic mail message that is transmitted directly to
    a wireless device that is utilized by a subscriber of commercial
    mobile service ... in connection with such service." *See CAN-SPAM
    Act*, Section 14(d), *codified at* 15 U.S.C. § 7712(d).

[^9]: *CAN-SPAM Act*, Section 3(2)(A), *codified at* 15 U.S.C. §
    7702(2)(A).

[^10]: *CAN-SPAM Act*, Section 3(2)(B), *codified at* 15 U.S.C. §
    7702(2)(B).

[^11]: *CAN-SPAM Act,* Section 3(17)(A), *codified at* 15 U.S.C. §
    7702(17)(A).

[^12]: *CAN-SPAM Act*, Section 3(2)(C) and 3(17)(B), *codified at* 15
    U.S.C. §§ 7702(2)(C) and 7702(17)(B).

[^13]: *CAN-SPAM Implementation Order,* 19 FCC Rcd at 15952, para. 68.

[^14]: *Id.*

[^15]: 47 C.F.R. § 64.3100(c)(2).

[^16]: *See FTC Final Rules, supra*.

[^17]: *See FTC Final Rules,* 70 Fed. Reg. at 3127-28, *codified at* 15
    C.F.R. § 316.3(a).

[^18]: *See FTC Final Rules,* 70 Fed. Reg. at 3128, *codified at* 15
    C.F.R. § 316.3(b).

[^19]: *See* 47 C.F.R. § 64.3100.

[^20]: *See* 47 C.F.R. § 64.3100(c)(2).

[^21]: *See FTC Final Rules,* 70 Fed. Reg. at 3127-28, *codified at* 15
    C.F.R. §§ 316.2(n) and 316.3(b).

[^22]: Specifically, the FTC found that messages between a nonprofit
    organization and its members "would only be considered 'commercial
    electronic messages,' and thus subject to greater regulation than
    transactional messages, if (1) a recipient reasonably interpreting
    the subject line of the message would likely conclude that the
    message advertises or promotes a commercial product or service, or
    (2) the transactional or relationship content does not appear, in
    whole or in substantial part, at the beginning of the body of the
    message." *FTC Final Rules,* 70 Fed. Reg. at 3112, n.29.