Page 42 - AVN October 2015

LEGALESE | | By Clyde DeWitt
Junk Communications
How the TCPA and CAN-SPAM laws choke advertising
of CAN-SPAM
generally is the
”Enforcement
province of the
Federal Trade
Commission. It
can sue for civil
penalties of up
to $11,000 per
non-complying
email.
LEGAL NEWS
Clyde DeWitt is a Las Vegas and Los Angeles
attorney, whose practice has been focused on adult
entertainment since 1980. He can be reached at
ClydeDeWitt@earthlink.net. More information can
be found at ClydeDeWitt.com. This column is not a
substitute for personal legal advice. Rather, it is to alert
readers to legal issues warranting advice from your
personal attorney.
Every time a new mode of communicating is invented, marketers
try to figure out a way to utilize it for advertising. The printing
press brought leaflets and mass mailings; airplanes brought
skywriting and banners; and so on. Advertising via the
internet, telephone, fax machines and cellphones are the topic
of this month’s column.
There is a whole organization devoted to this: the Direct
Marketing Association (DMA), which according to its rhetoric
“is the world’s leading independent organization for data-
driven marketers.” It sends lobbyists to Washington and state
capitals to enforce the “rights” of its members, such as what
happened in a 1992 episode of Seinfeld:
“Hi. Would you be interested in switching over to TMI Long
Distance service?”
“Oh, gee, I can’t talk right now. Why don’t you give me your
home number and I’ll call you later.”
“Uh, sorry, we’re not allowed to do that.”
“Oh, I guess you don’t want people calling you at home.”
“No.”
“Well, now you know how I feel.”
Actually, Congress was a step ahead of Jerry in the
enactment of the Telephone Consumer Protection Act of 1991
(TCPA), 47 U.S.C. §227. However, obviously the DMA was
able to beat back these regulations for decades, given that
telephone solicitation had been in place for many decades
before then.
The TCPA addresses more than just Jerry Seinfeld’s cold
call. Between the mid-1980s and the early 1990s, fax machines
went from a luxury item available only to the most advanced
businesses to a virtual necessity; mobile phones followed the
same timetable; and so did personal computers. Relatively
inexpensive personal computers could operate as automatic
dialers and as fax-sending machines. While cold calls to hard-
wired phones were a nuisance—especially so-called “robo-
calls”—faxes and calls to mobile phones were different; they
cost money to the recipients. Fax machines used up ink and
paper (which then was often expensive thermal paper), and
inbound cell phone calls cost a buck a minute back then.
The TCPA addressed all of that, adding mobile-phone text
messages after they became popular.
But the DMA’s bonanza came with email. Sending junk
faxes was slow, even when from computer-generated faxes;
robo-calls could make multiple calls at once, although not that
many. But even in the early days of email, computers could
send out hundreds of thousands of emails in a day.
States addressed email spam in a number of ways, over the
objection of the DMA. Finally, after everyone was fed up with
spam, especially porn spam, Congress enacted the CAN-
SPAM Act in 2003 (Controlling the Assault of Non-Solicited
Pornography and Marketing Act of 2003), 15 U.S.C. §7701, et
seq. It preempted most state anti-spam laws, and enacted a
harsh set of regulations about commercial emails.
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