Time to can the spam

Federal Communications Commission, Notice of Proposed Rulemaking

Unsolicited commercial e-mail, or spam, is becoming an epidemic. Junk e-mail messages choke computer networks, frustrate Internet users and generally waste everyone's time. Several states — most notably Utah, California and Washington — have taken action, but the issue is unlikely to be solved completely without strong federal action. To date, none of the bills introduced in Congress has gone anywhere. Fortunately, there has never been a more favorable time for a federal solution to this problem, and it requires no congressional action.

The solution can be found in the Federal Trade Commission (FTC) and the Federal Communications Commission's (FCC) current efforts to rewrite the rules governing the telemarketing business. For some years, both agencies have had rules requiring each telemarketing company to maintain a "do-not-call" list, to which consumers may request that their names be added. Any failure to honor such requests may subject the company to sanction.

In May, the FTC published a notice of its intention to amend its rules to establish a single, national do-not-call list. Telemarketing companies would be required to consult this list on a periodic basis and refrain from contacting anyone whose name was included. The cost of maintaining the list would be defrayed through modest user fees imposed on telemarketing companies that access the database. On Sept. 18, the FCC published a notice of its intention to amend its own rules to be consistent with the FTC's proposal.

As published, neither notice explicitly addressed the issue of unsolicited commercial e-mail. However, on Sept. 3, a coalition of three consumer groups filed a petition with the FTC requesting that it issue a new rule to require each sender of unsolicited commercial e-mail to establish a reliable opt-out system through which any person could ask to be removed from the list of recipients of future e-mails and to make the failure to honor such requests punishable under law.

The petition on spam could not be more timely. The problem of unsolicited commercial e-mail is directly analogous to, and intertwined with, the problem of unwanted telephone solicitation. The two should be treated together.

Moreover, although the idea of the petition starts well enough, the planned reliance on individual spammers to maintain their own, separate opt-out systems is as doomed to failure as the current approach of letting individual telemarketers maintain separate do-not-call lists. There are simply too many direct-marketing companies to realistically require consumers to register separately with each one to escape unwanted attention.

The FTC has announced that it "is concerned about the proliferation of spam affecting consumers" and that it will "look forward to reviewing the petition." The FTC has posted a notice on its Web site requesting public input. Anyone who is interested in this issue is encouraged to respond.

Peckinpaugh is corporate counsel for DynCorp in Reston, Va. This column represents his personal views.

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