05-11908. 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

AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

In this document, the Commission amends its rules addressing unwanted mobile service commercial messages to cross reference new definitions adopted by the Federal Trade Commission (FTC). The Commission has directed the Consumer & Governmental Affairs Bureau (CGB) to revise the regulations of the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act) to reflect updated or amended definitions in the FTC's rules.

DATES:

Effective June 15, 2005.

FOR FURTHER INFORMATION CONTACT:

Julie Saulnier, Consumer & Governmental Affairs Bureau at [phone].

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Order, DA 05-692, adopted March 24, 2005 and released March 25, 2005. Copies of this document and any subsequently filed documents in this matter will be available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision may be purchased from the Commission's duplicating contractor, Best Copy and Printing Inc. (BCPI), Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. Customers may also contact BCPI at their Web site: http://www.bcpiweb.com or call 1-800-378-3160.

To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to [e-mail] or call the Consumer & Governmental Affairs Bureau at [phone] (voice) or [phone] (TTY). This Order can also be downloaded in Word and Portable Document Format (PDF) at http://www.fcc.gov/​cgb/​policy/​canspam.html.

Synopsis

In this document, the Commission amends its rules addressing unwanted mobile service commercial messages to cross 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), the Commission directed the Consumer & Governmental Affairs Bureau (CGB) to revise the regulations to reflect updated or amended definitions in the FTC's rules. 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.

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. This definition rule became effective on March 28, 2005. Consequently, we amend our CAN-SPAM rules to reflect the FTC's newly adopted definitions codified at 16 CFR 316.1-316.5 and cross reference those definitions in our rules so that our rules will reflect any further revisions the FTC makes.

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, Public Law 108-187, 117 Statute 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, and part 64 of the Commission's rules, 47 CFR 64.3100, is amended.

Report to Congress

The Commission will not send a copy of this Order pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A), because the adopted rules are rules of particular applicability.

List of Subjects in 47 CFR Part 64

• Telecommunications
• Telephone

Federal Communications Commission.

Monica Desai,

Acting Chief, Consumer & Governmental Affairs Bureau.

Final Rules

For the reasons set forth in the preamble, the Federal Communications Commission amends 47 CFR part 64 as follows:

PART 64—MISCELLANEOUS RULES RELATING TO COMMON CARRIERS

1. The authority citation for part 64 continues to read as follows:

Authority: 47 U.S.C. 154, 254(k); secs. 403(b)(2)(B), (c), Pub. L. 104-104, 110 Stat. 56. Interpret or apply 47 U.S.C 201, 218, 222, 225, 226, 228, and 254 (k) unless otherwise noted.

2. Section 64.3100 is amended by revising paragraphs (c)(2) and (c)(8) introductory text to read as follows:

§ 64.3100

Restrictions on mobile services commercial messages.

* * * * *

(c) * * *

(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 CFR 316.3. 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 Web site operated for a commercial purpose).” The term “commercial electronic mail message” does not include a transactional or relationship message.

* * * * *

(8) Transactional or relationship message means the following and is further defined under 16 CFR 316.3 as any electronic mail message the primary purpose of which is:

* * * * *