Last year, trade associations for the nation's newspapers, newsletters and electronic publishers urged Congress to enact the legislation known as the CAN-SPAM Act, which aims to crack down on unsolicited commercial e-mails.  This year, the Newspaper Association of America (NAA), which represents 2,000 newspapers in the United States and Canada, and the Newsletter & Electronic Publishers Association (NEPA), which represents 3,000 publishers, are urging the Federal Trade Commission to rule that the law doesn't apply to most of the e-mail disseminated by their members.

The two trade groups got their first wish.  Last November, by overwhelming margins in both the House and Senate, Congress enacted the measure whose wishful acronym stands for the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003.  President Bush signed it into law on Dec. 16, and it took effect Jan. 1. Publishers will soon know the extent to which they'll have to comply with the law.  By the end of this year, the FTC is expected to issue regulations fleshing out many key details that were left hanging in the legislation.

The most important of the forthcoming FTC edicts will define exactly what sorts of e-mails are encompassed by the law, which by its own terms covers "any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose)."  The law instructs the FTC to issue regulations within one year of enactment that explain how to go about determining the "primary purpose" of an e-mail message.  The publishers' trade groups contend that the regulations should make it clear that e-mails intended to disseminate news and information are not covered by the law, even if those messages contain paid advertisements and are offered for sale by companies that expect to make a profit.  In their comments filed with the FTC on the issue, the two associations have hinted broadly that if the commission doesn't see things their way, they will initiate litigation asserting that the CAN-SPAM Act, as applied to their members, violates the First Amendment.

Not that they have any problem with the act as applied to others. Both groups praised Congress for trying to stop the scourge of unsolicited and fraudulent e-mail that imperils an increasingly popular and vital means of communication and commerce. But opinions about the ability of the law to achieve that objective vary widely. Joe Jaffe, formerly media director of TBWAChiatDay who now has his own online-marketing consultancy, asserts that "CAN-SPAM is too little too late" to save e-mail from the clutches of unscrupulous hucksters, who will always be able to stay one step ahead of legal and technological remedies. On the other hand, Mark Naples, a communications consultant with Wit Strategy, contends, "If you were realistic in setting expectations, CAN-SPAM has probably met it."  Over time, some spammers will be caught and others will be scared into curtailing their activities, Naples says.

Whether the law actually cans spam or not, it has already achieved another objective that is just as important to publishers.  The federal law preempted the confusing patchwork of disparate anti-spam laws that were enacted in more than half of the states in the last several years.

The anti-spam law enacted last year in California, which would have taken effect at the start of this year if Congress had not stepped in, scared the wits out of publishers.  It seemed to suggest that they would have needed to obtain advance consent from readers for every advertisement included in an e-mailed newsletter, under threat of incurring penalties of up to $1 million per incident.  And the state law would have allowed any recipient of noncompliant e-mail to sue for damages plus attorneys fees.

The federal law is innocuous by comparison.  It gives senders of commercial e-mail "one free shot" to transmit an unsolicited message to a consumer, as long as it is clearly labeled as an advertisement, has an honest subject line, lists the physical address of the sender and includes an opt-out feature that remains functional for 30 days.  And enforcement is left in the hands of state and federal prosecutors.

Though they are urging the FTC to exempt the informational newsletters e-mailed by their members, the NAA and NEPA have advised publishers to proceed as if the CAN-SPAM Act applies to everything they disseminate.  By all accounts, that hasn't been a problem.  "I can't say that the law has had any effect whatsoever on our members because newspapers typically ask readers to register for online news updates as well as for any special offers for consumers," explains Paul Boyle, the NAA's senior vice president for public policy.

To be sure, the law could turn out to be considerably more onerous than it now appears to be.  That will depend on how the regulations to be promulgated by the FTC resolve a number of ambiguities in the legislation.  For instance, while the law covers any "sender" of a commercial solicitation sent by e-mail, it does not explain who fills that role in the case of an electronic newsletter that contains ads from various business.  As the NAA explained in its comment on the issue filed with the FTC, "[I]f each advertiser were deemed a 'sender,' a newspaper would have to: (1) purge each email against the do-not-send list of that advertiser and (2) forward newly-received opt-out requests to each business with an advertisement in the commercial email. The work involved would increase as the number of distinct advertisers in the email increases. Each advertiser would then independently process opt-out requests, presumably after having had them relayed by the newspaper. These burdens would make it difficult for newspapers to continue distributing commercial emails."

Both the NAA and NEPA have also urged the FTC to rule that the original publisher of an e-mail or Web page is not the "sender" of any message passed on by a reader who makes use of a "forward-to-a-friend" feature.   The trade associations also have asked the FTC to clarify that any e-mail solicitation sent by businesses to their existing customers fall within the definition of "transactional" or "relationship" messages, which are exempt from the provisions of the act. "This will permit publishers to freely communicate with their current customers via e-mail," NEPA explained in its comment filed with the FTC.

In its brief, the NAA asked the FTC to exercise its discretionary authority to tinker with the act by extending the 10-day deadline set by Congress for processing opt-out requests. "Like many other businesses, newspapers will need more than ten days to process opt-out requests given their complex electronic distribution," the NAA explained.  "...[N]ewspapers have separate mailing lists for separate email services of e-newsletter subscribers and special offer subscribers. They are likely to have entirely separate email lists (and possibly even systems) for their circulation and marketing departments. Honoring opt-outs will require newspapers and other businesses to process opt-out requests for each list against all other lists to ensure that they do not send any type of commercial email to opt-out requestors."

By far the most significant issue for publishers that remains to be resolved by the FTC is the definition of "primary purpose."  The legislation itself makes it clear that the problem that drove Congress to enact the law concerns the proliferation of unsolicited advertisements, most of which are deceptive and fraudulent and many of which are pornographic. Informational messages of a sort that would be protected by the First Amendment if they appeared in print have not caused the sorts of problems cited by Congress and were not meant to be covered by the act, the trade groups contend.

As NEPA asserted, "To that end, NEPA respectfully urges the FTC to define the 'primary purpose' of an e-mail message so as to exclude from this definition (and, thus, the reach of the Can-Spam Act) those e-mail messages that contain advertising content ancillary to news reporting and other content fully protected by the First Amendment. ... Accordingly, as among the various specific definitions that the FTC has proposed, NEPA recommends that the primary purpose of an e-mail be considered commercial in nature only where 'an e-mail's commercial advertisement or promotion is more important than all of the e-mail's other purposes combined.' A broader definition than this threatens to interfere with news publishers' ability to communicate effectively with customers and potential customers."

Electronic publishers have some reason to hope that the FTC will be receptive to their pleas.  The commission has already issued one ruling in response to the legislation, which was encouragingly cautious in its view of the scope of the CAN-SPAM Act.  Congress requested a report on the feasibility of setting up a national do-not-e-mail registry similar to the do-not-call list for telemarketing, where consumers could declare their desire not to receive any electronic messages that they have not requested.  The FTC was inundated with comments objecting to that idea.  Critics of the proposal raised numerous objections including the possibility that the list could be hijacked by spammers.

The FTC ultimately agreed.  In a report released June 15, the commission declared that until foolproof means of verifying the origins of e-mail addresses are developed, a registry "would fail to reduce the amount of spam consumers receive, might increase it, and could not be enforced effectively."