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 Federal  Communications  Commission  DA  05-  692 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 
 In  the  Matter  of 
 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 

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 CG  Docket  No.  04-  53 
 CG  Docket  No.  02-  278 
 ORDER 
 Adopted:  March  24,  2005  Released:  March  25,  2005 
 By  the  Acting  Chief,  Consumer  &  Governmental  Affairs  Bureau: 
 A.  Introduction 
 1.  In  this  Order,  we  amend  the  Federal  Communications  Commissions  (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  FTCs  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 

 2.  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  FTCs  newly  adopted  definitions  and  incorporate  them  by  reference  in  our  rules  so  that  our  rules  will  reflect  any  further  revisions  the  FTC  makes. 

 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. 
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 B.  Background 
 1.  CAN-  SPAM  Implementation 
 3.  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  Commissions  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  customers 
 status.  11 
 4.  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  FCCs  rules  would  need  to  be  amended  to  cross-  reference  the  FTCs  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 
 C.  Discussion 
 1.  Definition  of  commercial  electronic  mail  message 
 5.  The  Commissions  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 

 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. 
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 does  not  include  a  transactional  or  relationship  message.  15 
 6.  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  FTCs 

 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  messages  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 
 7.  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  FTCs  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 

 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. 
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 2.  Definition  of  transactional  or  relationship  message 
 8.  In  addition  to  defining  a  commercial  electronic  mail  message,  the  Commissions  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  recipients  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  Commissions  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  FCCs  rules  to  cross-reference 
 the  FTCs  rules,  so  that  the  FCCs  rules  reflect  the  FTCs  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 

 D.  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, 

 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. 
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 and  the  authority  delegated  to  the  Consumer  &  Governmental  Affairs  Bureau  in  the  Commissions  CAN-SPAM  Implementation  Order,  FCC  04-  194  (adopted  August  4,  2004),  this  Order  is  ADOPTED  as  set 
 forth  herein,  and  Part  64  of  the  Commissions  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 
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 APPENDIX  A 
 Final  Rules 
 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. 
 (a)  ***  (b)  *** 
 (c)  Definitions.  For  the  purpose  of  this  subpart:  (1)  *** 

 (2)  Commercial  electronic  mail  message  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  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)  *** 
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