Enforcement. CAN-SPAM is enforced by the FTC and violations are deemed an “unfair and deceptive act or practice.” 15 U.S.C. § 7706(a). State attorneys general can also bring actions for damages suffered by state residents as well as injunctive and equitable relief. Criminal penalties are available for predatory and abusive commercial email. [15 U.S.C. § 7703]. There is no private right of action under CAN-SPAM. More information on how to comply with CAN-SPAM can be found at the FTC’s Bureau of Consumer Protection, Business Center at CAN-SPAM Act: A Compliance Guide for Business. Canada has recently enacted one of the strictest laws to curb unsolicited commercial email with significant penalties for non-compliance. Laws Restricting Cell Phone Marketing. Cell phones can receive two forms of unsolicited commercial advertising: text messages and phone calls. Unsolicited text messages fall under CAN-SPAM to the extent the message originates from Internet addresses. Such text messages are subject to both CAN-SPAM and FCC regulations. Text messages that are sent from phone-to-phone do not involve Internet domains and are therefore not subject to CAN-SPAM and the FCC. Phone-to-phone text messages are subject to the Telephone Consumer Protection Act (TCPA) discussed below.
The Telephone Consumer Protection Act (TCPA) [47 U.S.C. § 227]
Text Messaging. All marketing through telephonic devices, including mobile phones, is controlled by the Telephone Consumer Protection Act (TCPA) passed in 1991, which falls under the FCC’s jurisdiction. The TCPA allows individuals and private lawyers to file lawsuits and collect damages for receiving unsolicited telemarketing calls, faxes, pre-recorded calls, auto dialed calls, or text messages. Marketing through telephonic devices, including mobile phones, is covered by the TCPA. Purely informational calls and calls for noncommercial purposes are exempt but dual-purpose calls may be covered.
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