UPDATE: Anti-Spam Bill Faces House Vote

A federal bill that seeks to restrict the transmission of unsolicited commercial e-mail may be voted on in the U.S. House of Representives before the Fourth of July recess but is more likely to take place later this summer.

The bill passed its second hurdle last week when the Commerce Committee of the U.S. House of Representatives unanimously approved it.

H.R. 3113, also called the Unsolicited Commercial Electronic Mail Act, would place several restrictions on e-mail marketers, including requirements that all commercial e-mail messages have valid reply addresses; that marketers take consumers' names off of mailing lists when asked to do so; and that commercial e-mails be appropriately labeled as such.

The bill also would allow ISPs and consumers to petition the Federal Trade Commission for cease-and-desist orders and would protect state laws that allow consumers to sue spammers. Financial penalties would start at $500 per violation but could not exceed $50,000. If, however, a judge found that a company committed excessive violations, the sum could rise to as much as $150,000.

“E-mail can be a useful advertising tool for business if used properly and with the consumer's consent,” said Rep. Gene Green, D-TX, one of three representatives who sponsored the bill. Spammers, however, “frequently falsify identifying e-mail information to facilitate their illegal activities. This legislation weeds out fraudulent spam and eliminates the burden on Internet users,” he added. Reps. Heather Wilson, R-NM, and Gary Miller, D-CA, are the other co-sponsors.

H.R. 3113's easy passage through the Commerce Committee and into a full House vote signifies bipartisan support for at least some federally mandated regulation of unsolicited commercial e-mails.

Currently, only individual state laws regulate spam, a less than ideal system for dealing with spammers that operate nationally, if not globally. Additionally, state courts earlier this year weakened anti-spam laws in California and Washington, ruling that aspects of each law were unconstitutional.

Anthony Priore, senior vice president of marketing at Yesmail, one of the industry's strongest proponents of opt-in e-mail marketing, said he did not think it was possible to legislate e-mail marketing effectively at the state level.

“I think [e-mail] is begging for a federal leveler,” Priore said. “Chipping off on a state-by-state level isn't getting us anywhere.”

As one of the high-profile opt-in e-mail marketers — along with NetCreations and a few others — Yesmail favored any law that tries to limit spammers from harassing people, Priore said.

“But,” he cautioned, “the bill has only passed a hurdle. It's not a fait accompli.”

The Unsolicited Commercial Electronic Mail Act seeks to give ISPs greater power to set and enforce their own spam policies. The bill also would facilitate the availability of ISP spam policies. At least one interactive marketer expressed concerns about the responsibilities he felt the bill would give to ISPs.

“Certain aspects of the bill are in the best interest of the consumers,” said Jay Schwedelson, corporate vice president at Worldata/WebConnect, Boca Raton, FL. But other aspects may pass along too much power and jurisdiction to ISPs rather than the government, he suggested.

“It's allowing them to decide what e-mails are allowable and what e-mails are not,” Schwedelson said. “That's really the biggest problem — letting the ISPs be the gatekeepers for all communication over the Internet.”

However, the bill does require ISPs that are compensated for accepting spam to give their subscribers a clear opportunity to opt out of receiving those e-mails.

Should the bill pass a full House vote, it would be sent to the Senate, where it would be reconciled with a companion bill. The offices of the representatives sponsoring the House bill did not mention a timetable for when they thought the bill might make its way to the Senate chambers.

Anti-spam organizations predictably cheered the latest development.

“If passed into law,” said Ian Oxman, co-founder of the Spam Recycling Center, “it will unify the patchwork of anti-spam laws being passed in the states, giving marketers and consumers a clear understanding of what types of e-mail advertising are proper and acceptable.”

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